FJA Journal - July_August_2017

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Florida Justice Association • July/August ® 2017 • #597






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Roads to Mastery: Register for This Year’s Masters of Justice CLE Event

pg 10

12, 26

The Florida Supreme Court holds the §766.118 caps on noneconomic damages in medical malpractice cases are unconstitutional


Supreme Court holds that insurance policy language covering “other reasonable expenses incurred at our request” includes costs taxed against an insured whose defense it handled


Negligent failure to procure insurance may lie based on a negligent failure to obtain coverage that is clearly warranted by the insured’s expressed needs


Suing Lyft and Uber: Has the legislature left any viable causes of action against them?


Second DCA holds expert fees are not recoverable under §57.105


Practice tips for litigating defense motions for change of venue based on forum non conveniens


The history and current status of Florida’s offer of judgment minefield

IN THIS ISSUE From the Leadership Retreat: an ambitious plan for growing FJA’s membership

The force is strong with FJA’s Young Lawyers Section!

pg 5

5 President’s Message— Dale Swope 8 Executive Director’s Message — Paul Jess 10 Special Focus: Master of Justice 12 Cases and Commentaries — Kenneth D. Kranz 14 Legislative Notes 18 Tips for Auto Practitioners — Brent Steinberg 22 Insurance — Gregory M. Yaffa and Jason Fagnano 26 Medical Malpractice — Scott R. McMillen and Allison McMillen 30 Products Liability — C. Richard Newsome and William C. Ourand 34 Civil Procedure — Roy D. Wasson 38 FJA Appellate Practice Section — Adam Richardson 42 FJA Young Lawyers Section — Heather Freeman Jones 46 The Briefcase — Jed Kurzban, Lauren Gallagher and Elaine Kussurelis 52 The Briefcase — Paul Jess 54 EAGLE 57 Member Outreach 65 Index

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INTERIM EXECUTIVE DIRECTOR Paul Jess EXECUTIVE COMMITTEE Laurie Briggs Nathan P. Carter Tiffany M. Faddis Christopher N. Ligori Todd J. Michaels


DIRECTORS 2017-2019 Hubert R. Brown Richard E. Chait Clifton C. Curry, Jr. Tiffany M. Faddis Jason F. Lamoureux Christopher N. Ligori Damian B. Mallard Todd J. Michaels Curry Pajcic Waylon Thompson Hendrik Uiterwyk Gregory M. Yaffa Mark Zamora

If you are a Paralegal Member of the FJA, your Membership Includes Access to the Paralegal List Server

DIRECTORS 2016-2018 Vanessa Brice Laurie Briggs David C. Dismuke Elizabeth Finizio Steven Jaffe James L. Magazine Daniel A. Mowrey H. L. Larry Perry Matthew N. Posgay Daniel Vazquez Steve Watrel Jason Whittemore

members and ask your most pressing Paralegal List Server, contact the FJA Membership Department at (850) 521-1093.


Network with other FJA paralegal questions. To sign up for the

DIRECTORS AT LARGE Thomas W. Carey William T. Cotterall Matthew K. Foster Allison McMillen H.K. Skip Pita Anthony Quackenbush Brent G. Steinberg PRESIDENTIAL APPOINTMENTS Nathan P. Carter



LOCAL TLA REPRESENTATIVES BCJA – Scott L. Henratty CCJA – Kimberly Hogan CFTLA – Glenn M. Klausman JJA – Daniel A. Iracki MTLA – Bernard F. Walsh MDJA – Shannon Del Prado PBCJA – Peter Hunt TBTLA – James W. Guarnieri, Jr. TCJA – Gloria Seidule AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Adam Langino Ricardo Martinez-Cid Troy Rafferty Herman J. Russomanno Jean Marie Whalen Edward H. Zebersky AAJ STATE DELEGATES Jack Hickey Clancey Bounds Daryl D. Parks


BIG SKY by FJA President Dale Swope



or four days in the middle of July, it was hard not to be optimistic about the future of the FJA. A group of about 40 of our current and future leaders took that time together to really focus on how we can make our organization stronger and better for the future that lies ahead.

Thanks to the exceptional work of leaders who have gone before, we found ourselves facing no legislative crises or immediate shortages of resources, and instead enjoyed the unspeakable luxury of time to actually breathe deeply and study the far horizon. Some facts lay before us as cold and clear as the crystal water in the Gallatin River. Our membership shrank a few years back. A lot. At the same time, the cost of protecting the civil justice system grew. A lot. The inescapable result of these crossing trend lines has been that fewer and fewer members have had to bear a greater and greater share of the cost of keeping the civil justice system alive. The efforts to broaden the donor base resulted in a necessary but uncomfortably relentless focus on fundraising from more casual members, even those who had recently joined. It sometimes felt like it would never end. Membership dues, then EAGLE, then PAC, then calling on friends to increase their EAGLE, then increasing our own EAGLE payments again. This pattern continued on and on until it resulted in a loss of more members because of funding fatigue, and perhaps some still question whether they would be better off just walking away to let someone else carry the load for them. That process increased the pressure on the core donors even more. This intensifying cycle, while resulting in resounding political and legislative

victories, seemed destined to result in an unsustainable dependence and burden on only a tiny percentage of our members. That is the opposite of what the FJA should be. And, in the wake of Citizens United, it is inevitable that the cost of protecting individual rights against the monstrously powerful forces trying to restrict meaningful access to the courts is not going down any time soon. The solution to the conundrum was exquisitely obvious when watching the pink sun rise over the lone peak – grow the membership! Not by a little. It’s called BIG Sky, right? THE SOLUTION IS TO GROW THE MEMBERSHIP OF THE FJA BY 25 PERCENT A YEAR, FOR FIVE CONSECUTIVE YEARS. AND THAT IS WHAT WE ARE GOING TO DO. There. I’ve said it. Now step back and think about it. Compare that against our typical 1-3 percent year growth in recent years, to get a sense of the scope of this challenge. But it has to be done if we are to succeed and flourish, and to become who we need to be. And it CAN be done. It honestly can. I’m not just saying that as an enthusiastic cheerleader. We are an organization that routinely accomplishes tasks others think are impossible, and compared to those, this won’t be that hard. Here is the broad brush stroke of the growth hacking plans the committees from the Montana participants formed and are working on right now: 1. Rapidly and Grandly Increase Our Programs of Incentives, Discounts and Recognition for New Members, for | July/August 2017 | 5


Member Retention, and for Members Who Recruit More New Members. There are so many opportunities for us they could cloud the sky like the Milky Way in a clear northern night.

personal injury lawyers in (insert city here), who the heck ARE all those people buying PPC that aren’t with us? They are “targeted recruits,” that’s who. They may be competition, but we need them in the boat, getting better and better.

2. Invest in Massive Improvements to Our Benefits Delivery Program for Our Members. FJA members should enjoy a constellation of benefits that give them an undeniable economic competitive advantage over competitors who do not join. This starts with improving the value of the TLEL and other listserves, providing curated forms, memos briefs and notes for recurring legal issues we all face. It includes deep discounts from vendors for services we all need and use, and even exercising volume purchase power over things like media buys (thank you Chris L). Our CLE’s are already the best in the universe, but there are plenty of ways to make them much better so that that our members win their cases, consistently, and can pursue a certification to let their clients know they are dealing with attorneys who have superior training and support.

As long as they are muddling around, striking out on their own, they lower the expectations of every insurance company and gum up the evaluation process for everyone. Let’s get them in the boat, and pulling an oar. Jonathan Ducote knows his tech, and he laid out a tried and proven process to massively increase our recruiting numbers.

3. Improve the Support Provided to Our Local TLA’s, to help them be better membership generators. Local trial lawyer associations, like Tampa Bay TLA, the Central Florida TLA, and many others, are tremendous resources for our members, but we can make them better. We can also provide extremely valuable incentives and rewards for the TLAs who initiate programs to generate superlative numbers of new members for us. They need us, and we need them. What could be easier? 4. Capture Our Future – while they are still penned up in law schools around the state. There are 11 of those schools now in Florida, and the vast majority of their students have never heard of the Florida Justice Association. We do a lot but obviously we should do more, talking to them in their language, and in their media, to make sure they get the message that all the coolest lawyers are definitely members of the FJA. 5. Using New Technologies to Support Our Fundraisers/ Recruiters to Isolate and Acquire the Lawyers Who Should Belong. In your town, do you see billboards of personal injury lawyers whom you have never heard of? If you Google 6 | July/August 2017 |

6. Engage our Secret Weapon – YOU!!! Look, the math is pretty simple. If every one of us recruits ONE member this year, we are almost done with our five year plan. ONE! In the past, you have been asked to help raise political money and come to Tallahassee to lobby, and to walk in the August heat to convince voters for a friendly candidate, and we are still going to ask you do to all those things. But compared to those, recruiting ONE new member should be an absolute piece of cake. So I’m asking. Get one. In fact, not everybody will do it, so to be safe, get TWO. And listen. If for some reason you don’t love this organization enough to want to help someone learn about it. If you don’t think you would be doing a friend a favor by letting them know about the greatest thing that has ever existed for a lawyer trying to handle injury claims in Florida, then please call me. We need to talk, and get to work fixing whatever has you concerned. Otherwise, run that google search right now to find a lawyer who is not a member, call them up, and recruit them today! And here is a simple fact about cold calling new members: In April, I challenged one of our vendors – Janette Bejkova Carey – to recruit new members by cold calling people who were strangers to the organization. As of this writing she has recruited more than 50 in her spare time. That’s nuts, but it’s nothing compared to what we are going to do. THERE IS MORE coming – including a more rational and fair way to raise the millions of dollars we need each year to protect our system of justice, but I’m out of space. Come to one of our seminars, check our Facebook page, or just wait till the next issue of the Journal. We are going big!!!

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by Paul Jess, FJA Interim Executive Director


t is an exciting time for the Florida Justice Association. We are growing stronger, with our membership numbers and our influence on public policy both rising. This is a perfect time to bolster our efforts to protect the civil justice system for years to come.

In the past, the FJA has been called upon to engage in numerous intense, time-sensitive fundraising efforts in order to defend the rights of Floridians. FJA fought: • Against Amendment 10 in 1988 (that would have constitutionally capped all non-economic damages at $100,000), • Against Amendment 3 in 2004 (which attempted to cap attorneys’ fees in medical malpractice cases at 10 percent), • Against the merit non-retention campaign of 2012 (that threatened the continued service of three respected Florida Supreme Court justices). Taking on these challenges required emergency action to commit the resources necessary to fund competitive campaigns to educate Floridians about these issues. Often, taking on these challenges required members to reach deeper into their pockets and make an unplanned sacrifice from their firm’s bottom line. Also, with our limited resources, the FJA has had to practice appropriate fiscal restraint in the face of these challenges. We know with certainty that the FJA will be drawn into future battles, not only in the Florida Legislature over proposed legislation, but also at the ballot box over proposed constitutional amendments or judicial merit retention campaigns. We’re launching a better, smarter and more deliberate way to prepare for the future challenges we will face. Our vision is to dramatically expand our two partnering endowment funds, thereby enhancing our two ever-growing, “war chests,” to expand the investment income available as quick response “seed money” for the research needed to begin a public policy campaign, and

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also to create and buy the media needed to fire the first political shots in a public policy campaign. Further, the very existence of these two war chests could discourage efforts by those who might seek to propose legislation or constitutional amendments designed to benefit corporate special interests at the expense of the rights of individuals. The Florida Justice Association has two powerful tools to use: The Partnership Trust for Justice Endowment and the EAGLE Strategic Endowment. The Florida Justice Association Research and Education Foundation (FJA REF), the 501(c)3 charitable arm of the FJA, created the Partnership Trust for Justice Endowment as a vehicle to do the following things with the investment income from the endowment: • Conduct research to provide educational information on proposed legislation or constitutional amendments; • Conducting research to support legislative positions, such as actuarial studies to support changes in insurance law. • Conduct polling and focus groups to determine appropriate messaging for constitutional amendment campaigns and/or judicial merit retention campaigns • Support litigation regarding constitutional or public policy issues; and • Fund many current FJA expenses that should be activities of our charitable arm, the Florida Justice Association Research and Education Foundation. The mission of the EAGLE Strategic Endowment is to provide access to sufficient financial resources for the FJA to engage immediately in extraordinary legislative, constitutional amendment or judicial merit retention campaigns without first needing to engage in emergency, ad hoc fundraising campaigns. The investment income from this endowment could immediately create and buy media advertising to begin or respond to any campaign. Our plan calls for investment income generated by the core principal of the two endowments to fund their activities. Annual earnings from these permanent endowments could provide substantial funding for FJA and Foundation operations and programs. Consider the numbers: If each endowment were funded with $50 million, these investments could generate operating income of more than $2.5 million for each annually.

Also, having available investment income from two endowment and legislative advocacy and a forward-thinking educational and refunds to enhance our operations in non-crisis times would alleviate search agenda. some of the day-to-day fundraising burden on our members. We will be conducting a planned giving campaign this fall to begin If the EAGLE Strategic Endowment and the Partnership Trust for increasing the funding for these two endowments. Please consider Justice Endowment were generating sufficient annual earnings, lead- one or both of these endowments in your planned giving and estate ers of FJA and the Foundation could concentrate fully on political plans.

LAWYER TO LEGACY ENDOWMENT PROGRAM In honor of Al Cone and our other Founders and to commemorate the Florida Justice Association’s 50th Anniversary, the FJA Board of Directors has launched our Lawyer to Legacy Campaign to begin the process of endowing EAGLE and the FJA REF. This is something we all can and should participate in if we believe in protecting the rights of the injured, defending the civil justice system, and training and educating lawyers in the art of advocacy. While monetary donations are always welcome, there are other ways of contributing that require little or no out-of-pocket expense. These include; 1. Planned gifts, including bequests, gifts of retirement assets or life insurance; 2. Outright or deferred gifts of life insurance, securities or real and tangible property. If you believe in protecting justice and the legal fabric of our society, make a difference that extends beyond your practice and survives beyond your life – become a Lawyer who leaves a Legacy!

Paul Jess @ (850) 521-1026




SCHEDULE AT A GLANCE: WEDNESDAY, OCTOBER 4, 2017 7:30 am – 5:30 pm

Registration & Exhibits Open

8:30 am – Noon

Technology Seminar

1:00 pm – 5:30 pm

Medical Malpractice Seminar

5:30 pm – 6:30 pm

Diversity & Inclusion Reception

THURSDAY, OCTOBER 5, 2017 8:30 am – 5:30 pm

Registration & Exhibits Open

8:15 am – Noon

Auto Negligence Seminar

Noon – 1:45 pm

Founders’ Awards Luncheon

2:00 pm – 5:30 pm

Insurance & Bad Faith Seminar

FRIDAY, OCTOBER 6, 2017 8:30 am – Noon:

FJA Board of Directors’ Meeting

All Seminars are for FJA Members Only.

Registration is open @

10 | July/August 2017 |



The Perry Nichols Award is the highest honor the FJA bestows and gives recognition to an individual who has dedicated a lifetime to the pursuit of justice through extended and distinguished service to the cause of justice in Florida and in the nation.


The B.J. Masterson Award for Professionalism honors B.J. Masterson, an attorney and a former FJA President, who epitomized ethical professionalism in his lifetime of practicing law.


The S. Victor Tipton Award for superior achievement in legal writing is given in honor of S. Victor Tipton, Founder and Editor of the FJA’s Journal. Victor was also a founding member and former President of the Florida Justice Association. Victor provided a guiding spirit for the FJA from its inception.


Al J. Cone Lifetime Achievement Award honors the accomplishments of Al J. Cone, a founder of the Florida Justice Association and its first president. This award recognizes a career of leadership, example setting, devotion, and courage.


The Jon E. Krupnick Award is awarded for efforts on behalf of a particular client reflecting relentless commitment, perseverance and fortitude to seek justice and achieve success through all obstacles and legal roadblocks encountered.


The From Day One Award honors a member who has continuously demonstrated commitment and support to the FJA by accepting every challenge and serving willingly and tirelessly in the defense of Florida’s civil justice system.

ACCOMMODATIONS: RITZ CARLTON SARASOTA 1111 Ritz Carlton Drive • Sarasota, FL 34236 (941) 309-2000 FJA Group Room Rate: $239 Please make your room reservations by Friday, September 1, 2017 to receive the FJA Group Room Rate. The resort fee has been waived. Overnight valet parking has been secured at $18 per night for FJA attendees. Selfparking is not available at the resort. For reservations, please contact Ritz Carlton reservations at 1-877-557-3089. | July/August 2017 | 11




he Florida Supreme Court held 4-3 that the caps on noneconomic damages in medical malpractice cases set forth in §766.11, Fla. Stat., unconstitutionally violate equal protection. North Broward Hospital District v. Kalitan, So.3d , 42 FLW S642 (Fla. 6-8-2017). In the case below, the Fourth DCA held the caps unconstitutional on the basis of the Supreme Court’s decision in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), which held the statutory caps on wrongful death noneconomic damages in medical malpractice actions to be violative of equal protection. In affirming, the Court stated: “We conclude that the caps on noneconomic damages in section s 766.118(2) and (3) arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries. We further conclude that because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps in section 766.118 and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages provided in section 766.118 violate the Equal Protection Clause of the Florida Constitution.” A vigorous dissent, authored by Justice Polston, concluded that: “For a majority of this Court to decide that a crisis no longer exists, if it ever existed, so it can essentially change a statute and policy it dislikes, improperly interjects the judiciary into a legislative function.” The FJA, represented by Tracy Raffles Gunn, participated as Amicus Curiae. The Supreme Court amended the Rules Regulating the Florida Bar and the Florida Family Law Rules of Procedure to outline the professional conduct required of attorneys who represent parties in the “collaborative law process” as implemented for family law cases in the Collaborative Process Law Act, Ch. 201693, Laws of Fla. In Re: Amendments to Rule Regulating the Fla. Bar 4-1.19 and Fla. Family Law Rule of Procedure 12.745 (Collaborative law Process), So.3d , 42 FLW S596 (Fla. 5-18-2017). The Court noted that “the collaborative law process is a contractual, voluntary, and nonadversarial dispute resolution process, occurring between represented parties, to resolve some family law disputes.” The rule sets forth the obligations of attorneys with respect to providing their clients with information about the process, including the benefits and risks, alternatives, and the legal and other professional fees or costs that the client may incur. The Supreme Court amended the Code of Judicial Conduct to clarify the public financial and gift disclosure requirements for judges by reiterating that “the filing of the public financial disclosure reports required by the Code is the only public

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by Kenneth D. Kranz


disclosure of financial interests, compensation, gifts, or other benefits a judge or justice is required to make.” In Re: Amendments to the Code of Judicial Conduct, So.3d , 42 FLW S605 (Fla. 5-18-2017). A decision by the Supreme Court upholding the constitutionality of a special law providing for indigent care reimbursement to hospitals in Sarasota County offers an interesting look into some of the rarely-addressed nuances of special laws (a/k/a local laws) in Florida. Venice HMA, LLC v. Sarasota County, So.3d , 42 FLW S726 (Fla. 7-6-2017). The Court reversed a Second DCA decision which held that the indigent care provision of the special law constituted an unconstitutional privilege because it provides for reimbursement to the public and private hospitals only in Sarasota County rather than in the entire state. Where the plaintiff did not seek punitive damages in his complaint, the absence of a statement in his proposal for settlement indicating that no portion of the amount offered was for punitive damages did not render an otherwise unambiguous proposal invalid. Aguado v. Miller, So.3d , 42 FLW D1110 (Fla. 1st DCA 5-16-2017). The Second District reached the same conclusion in Polk County v. Highlands-in-the-Woods, LLC, So.3d , 42 FLW D1135(Fla. 2nd DCA 5-19-2017), where the proposal stated that it was “intended as a full settlement of all claims asserted by [the plaintiff] in this lawsuit.” The court found that this was sufficiently particular to put the plaintiff on notice that the defendant was seeking dismissal of all claims asserted in the lawsuit and including all damages that would otherwise be awarded in a final judgment. Furthermore, it noted, punitive damages had not been sought and were thus not required to be included in the proposal. In a nursing home case, where both liability and causation were hotly contested at trial and the ensuing damage award was clearly inadequate, the Fifth DCA concluded that the jury had rendered a compromised verdict and that a new trial was required on liability, causation and damages. FLNC, Inc. v. Ramos, So.3d , 42 FLW D1138 (Fla. 5th DCA 5-19-2017). Here, the plaintiff alleged that the defendants’ negligent care of the resident led to skin ulcers, infection and gangrene, which in turn led to a decision by her treating physicians to amputate her leg as the best way to avoid future skin ulcers. The court noted that “[i]t was clear from the testimony that [the resident] had experienced discomfort and pain; however the cause, nature, extent, and what portion was related to the left foot, the amputation, the leg contractures, or her other health conditions were disputed.” In what the court described as a battle of experts over liability and causation, the jury ultimately found that the nursing home was negligent, and it awarded the plaintiff past medical expenses, but nothing for pain, suffering or other intangible damages. The trial

court granted an additur, which was rejected, and ultimately ordered a new trial on causation and damages, but not liability. The Fifth DCA agreed with the trial court that a new trial was warranted, but held it had erred in granting only a partial new trial. “The hallmarks of a compromised verdict in a tort claim are a clearly inadequate damage award coupled with a finding of liability in a case where liability was hotly contested. … An improper compromised verdict on the issue of liability is highly probable when the jury returns a verdict finding that the defendant negligently caused injury to the plaintiff, but ‘awarded [the plaintiff] her [past] medical expenses without considering noneconomic damages.’” It held that because liability was hotly contested and there were “strong indications” that the jury had rendered an improper compromised verdict, a new trial was required on liability as well as causation and damages. “Florida’s Adult Protective Services Act[, §415.111, Fla. Stat.,] is remedial in nature. … Accordingly, an arbitration agreement provision that purports to preclude application of the Act’s prevailing party fee provision is unenforceable because it violates public policy.” Rockledge NH, LLC v. Miley, So.3d , 42 FLW D1140 (Fla. 5th DCA 5-19-2017). The court held that while the provision in the nursing home admission agreement which required each party to be responsible for its own attorney’s fees was unenforceable, it was properly severable from the agreement under a severability clause that expressly stated the agreement was to be interpreted as if any provision deemed invalid was not contained in the agreement. The court noted that the existence of a severability clause is not determinative as to whether a void clause invalidates the entire agreement. “Rather, the controlling issue is whether an offending clause goes to ‘the very essence of the agreement.’” Here, the court found, the offending attorney’s fee provision did not go to the essence of the agreement, and was thus severable. Application of the doctrine of express assumption of the risk is limited to situations involving express contracts not to sue and injuries resulting from contact sports; “implied secondary assumption of risk, which is unreasonable in nature, should be evaluated by the jury under the principles of comparative negligence.” Petruzzela v. Church on the Rock of Palm Coast, Inc., So.3d , 42 FLW D1141 (Fla. 5th DCA 5-19-2017). The plaintiff, a volunteer drummer in a church musical group and member of the defendant church, tripped over the bass player’s unsecured cord and fell off the stage during a rehearsal at the church and suffered substantial injuries. He sued, alleging a failure to maintain the premises in a reasonably safe condition. The defendant moved for summary judgment on the grounds of express assumption of the risk, asserting that the condition was open and obvious, and that the plaintiff knew of the condition and willfully accepted the risk. The trial court granted summary judgment, finding that the plaintiff “was aware of the condition of the stage and either knew or should have known of the risk of tripping over the unsecured cords on the stage, yet continually, repeatedly, and expressly assumed the risk of performing on that stage over a two-year period up until and including the date of the accident.” The Fifth DCA reversed, holding that the trial court’s conclusion regarding assumption of the risk was contrary to the law of Florida regarding express assumption of risk, implied assumption of risk, and principles of comparative negligence as set forth by the Supreme Court in Blackburn v. Dorta, 348 So.2d 187 (Fla. 1977), and subsequent cases. The court concluded that that

since the present case did not involve a contractual agreement not to sue or a contact sport, the plaintiff’s conduct of repeatedly walking across the cluttered stage is properly characterized as an implied assumption of risk that must be evaluated by the jury under the principles of comparative negligence. In an action where punitive damages were being sought, the trial court erred in giving the jury an instruction that it should consider the defendant’s financial resources while refusing to give a requested instruction to the effect that it may not award an amount that would financially destroy the defendant. Persaud v. Cortes, So.3d , 42 FLW D1144 (Fla. 5th DCA 5-19-2017). The usage note for the financial destruction instruction [Fla. Std. Jury Instr. (Civ.) 503.1(c)(2)] provides that the instruction is to be given when requested by the defendant and only when evidence of the defendant’s net worth has been introduced. Here, the court noted that the defendant had requested the instruction and the instruction the court elected to give required the introduction of evidence of net worth, so both requirements were met. It ordered a new trial limited to the issue of punitive damages. Due process requires an evidentiary hearing to determine the applicability of the crime-fraud exception to the attorney-client privilege. Douberley v. Perlmutter, So.3d , 42 FLW D1157 (Fla. 4th DCA 5-24-2017). “The crime-fraud exception provides there is no attorney-client privilege when the lawyer’s services are ‘sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.’ See §90.502(4) (a), Fla. Stat.” It was alleged that the attorney for the plaintiff in the underlying defamation action subpoenaed defendants in that action for deposition in another action to which they were not parties for purposes of secretly obtaining DNA samples from handled documents in violation of §760.40, Fla. Stat., which requires anyone doing DNA testing to first get the person’s consent and to notify the person of the results. In granting a motion to compel the attorney’s testimony regarding these depositions and the collection of the DNA, the trial court found that using the court’s subpoena power to schedule these depositions for no legitimate purpose other than the collection of DNA constituted a fraud upon the court, and it held that the crimefraud exception to the attorney-client privilege applied. The Fourth DCA reversed because the attorney did not receive notice of and was not present at the hearing that led to the order on the motion to compel; it did not reach the merits. While the plaintiff may have had a contractual claim against the purchaser of a cemetery from which the plaintiff had purchased a crypt, the successor company was not liable to the plaintiff for Florida Deceptive and Unfair Trade Practices Act violations allegedly committed by its predecessor and thus the plaintiff lacked standing to pursue the FDUTPA claims against the successor company; the trial court consequently erred in granting class certification and class representative status. DFG Group, LLC v. Stern, So.3d , 42 FLW D1161 (Fla. 4th DCA 5-242017). The plaintiff alleged that the original company made several material representations to him regarding the area where the crypt he purchased was located, including reservation of the area only for the remains of persons of the Jewish faith, the use of certain materials and design elements, and the preservation of the view from the crypts | July/August 2017 | 13


and niches. The court found he had no FDUTPA claim against the successor company because he had suffered no injury caused by that company’s representations. A provision in an arbitration agreement that prohibited parties from bringing “private attorney general actions” did not preclude the plaintiff from bringing her Florida Deceptive and Unfair Trade Practices Act claims as part of the arbitration. Sanders v. Drivetime Car Sales Company, LLC, So.3d , 42 FLW D1238 (Fla. 1st DCA 5-31-2017). The court pointed out that a FDUTPA claim can be brought by a person who has suffered a loss or who has been aggrieved by a violation of FDUTPA, an “interested party” or an “enforcing authority.” An interested party is a person who has been affected by a violation or by an order of the enforcing authority, and an enforcing authority is the office of the state attorney or the Department of Legal Affairs. The court found that an individual does not qualify as an “enforcing authority.” “Thus, an individual’s private claims for violations of FDUTPA cannot be deemed a private attorney general action since a person has no statutory right to represent the enforcing agency or another person under FDUTPA.” “[F]or purposes of the offer of judgment statute, a nominal offer is made in good faith where the offeror has a reasonable basis to believe that its exposure to liability is minimal.” Taylor Engineering, Inc. v. Dickerson, Florida, Inc., So.3d , 42 FLW D1240 (Fla. 1st DCA 5-31-2017).

The Fourth DCA held a purported exculpatory clause in a presurgery release to be “rife with ambiguity and uncertainty” as to negligence claims and thus ineffective in clearly waiving the plaintiff’s claims of medical malpractice. Brooks v. Paul, So.3d , 42 FLW D1305 (Fla. 4th DCA 6-7-2017). The release contained, in part, the following language: “[Defendants] … will not carry any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to sue [defendants] for any reason. My reason for doing this is that I realize that [defendant] and his staff will do the very best to take care of me according to community medical standards.” The court found this provision to be neither thorough nor detailed, to not expressly release any particular type of claims, and to be contradictory when all three sentences are read together. “The first two sentences, read in isolation, are broad and arguably encompass a negligence claim. … The third sentence, which qualifies the first two sentences, creates an ambiguity. Indeed if the defendants intended to be released from their own negligence, it begs the question as to why the third sentence in included in the release.” The court found the language in the release could most reasonably be taken to mean that the defendant was not to bear any responsibility for injuries that ordinarily and inevitably would occur without any fault of the defendant. Section 768.73(2), Fla. Stat., prohibits a subsequent punitive damage award if punitive damages were previously awarded in any action alleging harm from the same course of conduct, regardless


Things are quiet for now, but it will be a busy fall as the Regular Session will be in the early time slot again next year like it was in 2016. Art. III, Sec. 3(b), Fla. Const., requires the 60-day annual sessions in odd-numbered years to start in March, but it gives the legislature the discretion to specify a different starting date for evennumbered years. In 2014, they passed a law moving the start date of the 2016 Regular Session to January, and last year they passed a similar law convening the 2018 Regular Session on January 9, 2018. If it ends on time, sine die will be on March 9 2018.

August 1

Senate deadline for filing 2018 claim bills

September 12-15

Interim Committee Meetings

October 9-13

Interim Committee Meetings

October 23-27

Interim Committee Meetings

November 6-9

Interim Committee Meetings

November 13-17

Interim Committee Meetings

December 4-8

Interim Committee Meetings

January 9-March 9

2018 Regular Legislative Session

14 | July/August 2017 |

When the 2017 Legislative Session Wrap-Up was prepared for the May/June issue of the Journal final action by the governor was still pending on almost all of the bills that were covered. In the interim, all 13 claim bills that passed this year were approved, as were all of the general bills covered in the summary. The assigned Laws of Fla. chapter numbers and effective dates for all of the latter bills are as follows:

AUTO/PIP Children Obtaining Driver Licenses (S 60); Ch. 2017-8 (5/1/17) Transportation Network Companies (H 221); Ch. 2017-12 (7/1/17) Prohibited Insurance Acts (H 1007); Ch. 2017-178 (6/26/17) Unmanned Devices (H 1027); Ch. 2017-150 (7/1/17) Motor Vehicle Service Agreement Companies (H 339); Ch. 2017-99 (7/1/17)

COURT SYSTEM, PROCEDURE, DAMAGES & EVIDENCE Court Records (H 441); Ch. 2017-133 (7/1/17)

of whether the previous award of punitive damages was actually paid. Knauf Plasterboard (Tianjin) Co. Ltd., v. Ziegler, So.3d , 42 FLW D1311 (Fla. 4th DCA 6-7-2017). Here, the defendants, a Chinese drywall manufacturer and distributor, sought certiorari review of trial court orders permitting discovery of the amount of punitive damages they actually paid in the confidential post-judgment settlement of an unrelated case. In granting the discovery orders, the trial court pointed out that the subsequent punitive damages statute would have no import if the drywall defendants actually paid nothing and were not punished. However, the Fourth DCA found the statute to be clear on its face in speaking only to the amount of the award, and it held that the trial court erred in concluding that the statutory protection offered defendants implies that the protection applies only when the defendant has actually paid a fair share of the previously awarded punitive damages. The Fourth DCA held that a motion for attorney’s fees as a sanction under §57.107, Fla. Stat., requires not only compliance with the 21-day “safe harbor” provision but also strict compliance with the requirements of Fla. R. Jud. Admin. 2.516 regarding the service of the “safe harbor” letter. Estimable v. Prophete, So.3d , 42 FLW D1312 (Fla. 4th DCA 6-7-2017). Here, the motion for sanctions complied with the timing requirements of the 21-day “safe harbor” provision, but the “safe harbor” letter failed to strictly comply with all the e-mail service requirements of Rule 2.516(b)(1)(E), so the trial court erred in granting the sanctions.

In contrast to the foregoing, the Second DCA held that the email-service requirements of Fla. R. Jud. Admin. 2.516(B)(1) do not apply to a §57.105 “safe harbor” notice because it is a motion that is only served on the opposing party and is not filed with the court. Isla Blue Development, LLC v. Moore, So.3d , 42 FLW D1355 (Fla. 2nd DCA 6-14-2017). The court certified conflict with Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014), the case on which the Fourth DCA relied in Estimable, supra. A plaintiff who was injured when a car crashed into a sidewalk dining area at a café was entitled to depose the mayor and city manager who presumably would have known how and why the illegal sidewalk café was permitted to continue operating after receiving two citations from the city’s code enforcement board. City of Miami Mayor Tomas Regaldo v. Vila, So.3d , 42 FLW D1321 (Fla. 3rd DCA 6-7-2017). The plaintiffs had previously deposed at least seven city employees, including from the mayor’s office and the code enforcement board, in an attempt to determine whether the mayor’s office had authorized the café to continue operating its sidewalk café and how the café received a continuance of a code enforcement hearing at which the citations it had received were to be heard. They sought to depose the mayor and city manager because the defendants claimed that after they received the citations, a representative from the mayor’s office gave them express permission to continue operating the illegal sidewalk cafes. The mayor and city manager sought a protective order, arguing that the plaintiffs had



Civil Remedies for Terrorism (H 65); Ch. 2017-44 (7/1/17) Public Records (S 80); Ch. 2017-21 (5/23/17) Drug Overdoses (H 249); Ch. 2017-54 (10/1/17) Limitations on Actions Other Than for Recovery of Real Property (H 377); Ch. 2017-101 (7/1/17) Application of the Florida Deceptive and Unfair Trade Practices Act to Credit Unions (H 1347); Ch. 2017-190 (7/1/17)

Hospice Care (S 474); Ch. 2017-119 (7/1/17) Regulation of Health Care Practitioners (H 543); Ch. 2017-134 (6/23/17) Stroke Centers (H 785); Ch. 2017-172 (7/1/17) Rights and Responsibilities of Patients (H 1253); Ch. 2017-152 (7/1/17) Health Care Practitioner Licensure (H 229); Ch. 2017-41 (5/31/2017) Medication Synchronization (S 800); Ch. 2017-94 (1/1/18)

INSURANCE—BAD FAITH, PROPERTY & MISC. Florida Life and Health Insurance Guaranty Association (H 307); Ch. 2017-131 (7/1/17) Insurance Policy Transfers (H 805); Ch. 2017-19 (7/1/17) Insurer Insolvency (H 837); Ch. 2017-143 (7/1/17) Prohibited Insurance Acts (H 1007); Ch. 2017-178 (6/26/17) Regulation of Insurance Companies (H 359); Ch. 2017-132 (6/23/17) Flood Insurance (H 813); Ch. 2017-142 (7/1/17) Insurance Adjusters (H 911); Ch. 2017-147 (1/1/18)

NURSING HOME, ELDERLY & CHILDREN Guardianship (H 399); Ch. 2017-16 (7/1/17) Child Protection (H 1269); Ch. 2017-153 (7/1/17)

WORKERS’ COMPENSATION Public Records/Workers’ Compensation (H 1107); Ch. 2017-185 (7/1/17) Copies of all bills, amendments, legislative staff analyses, and complete legislative history including archived video or audio recordings of floor proceedings and many committee meetings can be found at www.flsenate. gov and | July/August 2017 | 15

CASES&COMMENTARIES failed to demonstrate that they were uniquely able to provide relevant information which could not be obtained from other sources. The trial court denied the motion, and the Third DCA agreed, finding that the previously deposed individuals had testified they did not know who allowed the illegal sidewalk cafes to continue operating and the city had failed to identify a specific individual who could provide the information sought by the plaintiffs. The fact that Congress amended the Jones Act in 2008 to delete its venue provision does not render a forum selection clause in a seaman’s employment contract void. Castro v. Pullmantur, S.A., So.3d , 42 FLW D1326 (Fla. 3rd DCA 6-7-2017). The plaintiff had argued, among other things, that the forum selection clause was void because the 2008 amendment deleted statutory language that required an action to be brought in the judicial district in which the employer resides or the employer’s principal office is located. Engle v. Liggett Group, Inc. 945 So.2d 1246 (Fla. 2006)] does not support the argument that the word “survivor” in Engle’s class definition included wrongful death beneficiaries of smokers who were not members of the Engle class, which would allow tolling of the statute of limitations on their claims. Fanali v. R.J. Reynolds Tobacco Co., So.3d , 42 FLW D1398 (Fla. 4th DCA 6-212017). “The original Engle lawsuit did not plead a wrongful death theory of recovery. The term ‘survivors’ in the class definition is best interpreted as including survivors of addicted smokers who were Engle class members. No case establishes that a smoker’s survivor can be a class member even where the smoker could not.” Here, because the decedent was not himself a class member, his survivors were not class members and thus could not rely on Engle to toll the statute of limitations for their wrongful death claim. A defendant’s proposal for settlement in a one count, one plaintiff negligence lawsuit that contained a dismissal conditioned upon the execution of a “joint stipulation for dismissal” was sufficiently clear to allow the plaintiff to make an informed decision without requiring additional clarification. Sherman v. Savastano, So.3d , 42 FLW D1405 (Fla. 4th DCA 6-21-2017). The plaintiff argued that the proposal was ambiguous because it was contingent on the execution of a ‘joint stipulation of dismissal” even though there was only one plaintiff and failed to provide the language of the stipulation of dismissal. The court noted that the particularity requirement of Fla.R.Civ.P. 1.442 is met if the proposal includes either the language of the proposed release or a summary of the proposed release so long as the summary eliminates any reasonable ambiguity about its scope. “Although a stipulation of dismissal is not the same as a general release, … a proposal for settlement subject to the condition of dismissal is enforceable so long as it contains sufficient language eliminating any ‘reasonable ambiguity about [the] scope’ of the dismissal.” The court noted that the only possibility of ambiguity here concerned whether the action would be dismissed with prejudice, which the language of the proposal clarified would be with prejudice. In a case where a Catholic parent’s statutory right to object on religious grounds to immunization of their minor children who were students at a parochial school ran head-on into the 16 | July/August 2017 |

Catholic Church’s constitutional religious freedoms to operate its parochial schools without governmental interference, the trial court correctly abstained from deciding whose religious views were correct. Flynn v. Estevez, so.3d , 42 FLW D1443 (Fla. 1st DCA 6-27-2017). While Florida has long imposed student immunization requirements on both public and private schools from prekindergarten to grade twelve, §1003.22(5), Fla. Stat., provides an exemption from the immunization requirement if the parent of the child objects in writing that the immunization conflicts with his or her religious tenets or practices. The defendant Catholic Diocese had previously allowed non-vaccinated students to attend its schools, but it changed its policy for the 2015-16 school year to require that all students be immunized as a condition of admission. The plaintiff provided the school with his religious objection in writing and attempted to resolve the matter informally, but ultimately the Diocese denied admission to the plaintiff’s rising first-grader. The plaintiff then filed the instant action for injunctive and declaratory relief, claiming the new policy violated his statutory rights. The trial court denied relief and dismissed the action. The First DCA affirmed, explaining: “The church autonomy doctrine, or ecclesiastical abstention doctrine, prevents civil courts from deciding matters that require adjudication of ‘theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them,’ … such that ‘secular courts must accept the decision by the highest ecclesiastical authority on such matters.’ The doctrine precludes secular courts from becoming arbiters of religious matters and the circumvention or erosion of church doctrine by those who disagree with it.” Here, the court found, the case did not present a type of ‘purely secular’ dispute involving a church and a third party that a civil court could properly address, but rather a religious disagreement between a church and one of its members for which abstention is appropriate. New allegations of grounds for disqualification of a judge that were raised for the first time in a motion to reconsider the denial of a writ of prohibition were untimely for purposes of disqualification under Fla. R. Jud. Admin. 2.330 because they were filed more than ten days after they were discovered. Reyes v. Infinity Indemnity Ins. Co., So.3d , 42 FLW D1469 (Fla. 3rd DCA 6-28-2017). Where the releases attached to a proposal for settlement contained much broader language than the proposals for settlement themselves, the discrepancy between the limited proposal of settlement and the much broader release created the type of ambiguity that runs afoul of the particularity requirement of Fla. R. Civ. P. 1.442. Dowd v. GEICO General Ins. Co., So.3d , 42 FLW D1471 (Fla. 3rd DCA 6-28-2017). The court held the ambiguity rendered the proposals unenforceable.


Mr. Kranz is Editor-In-Chief and columnist for the FJA’s monthly Journal. Mr. Kranz has 40 years of legislative experience and formerly served as the Senior Legislative Counsel with various responsibilities related to the FJA legislative activities.


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OF THE MORAL UNIVERSE IS LONG, ETC. The universal scam insurance companies inflict on our system of justice shows its face in many ways. Of course, there is the big one, which requires judges and lawyers, who are generally sworn to be honest, to swallow our ethics and implicitly lie to every single jury that gets sworn. By statute, we have to become co-conspirators in the scheme to act like the insured defendant is the true party in interest. We cannot even mention the insurer who stands in the background, pulling the puppet strings on the defense lawyer and insured through the “no action” clause of its policy. BY BRENT STEINBERG

the same language was really ambiguous, or that the taxable fees and costs were incurred “at the request” of the insurer.

nother is the way insurers dodge in and out of the shadows, never a party until they decide that it works to their advantage. For example, the nonjoinder statute provides, in section 627.4136(2), that if a carrier pays costs of defense and the insured wins, the carrier suddenly gets treated as if it WERE a party, and may recover its costs against the losing plaintiffs.

Steele held that neither taxable fees nor costs were payable under the policy and certified that issue to the Supreme Court, who promptly denied review.


The same rule applies when attorney’s fees are taxed against the plaintiff. Surely that is reciprocal, right? Surely, if the carrier LOSES and costs are taxed against the innocent insured – who had absolutely no control over the decision not to settle – the carrier doesn’t leave its customer hanging with nothing but a potential bad faith claim, right??? This first got addressed in FIGA v. Johnson, 654 So.2d 239 (Fla. 4th DCA 1995), which held that the standard ISO policy language “we will pay… other reasonable expenses incurred at our request” was ambiguous and should be interpreted against the carrier and in favor of coverage. But then, six years later, things went bad in Steele v. Kinsey, 801 So.2d 297 (Fla. 2d DCA 2001). Although the Second DCA recognized the incredible unfairness of its holding, it was uncomfortable saying that 18 | July/August 2017 |

And so, the law remained unfavorable as to fees and uncertain as to costs for nearly 15 years, while the lawyer who brought the Steele case brooded in frustration, plotting revenge. That opportunity first came in New Hampshire Indem. Co. v. Gray, 177 So.3d 56 (Fla. 1st DCA 2015), where the frustrated lawyer’s firm had gotten an order taxing costs, but not fees, under a policy with the exact same standard language as in Steele. The First DCA rejected the reasoning of Steele and held that costs were recoverable under the policy, again based on ambiguity of language. That set the stage for Gov’t Employees Ins. Co. v. Macedo, 190 So.3d 1155 (Fla. 1st DCA 2016), a decision that extended Gray to cover taxable fees and created a direct certifiable conflict with Steele. This time, the Supreme Court accepted jurisdiction, with cases handled by the same firm on both sides of the conflict giving rise to jurisdiction! Best of all, it was against GEICO, who nobody likes. See “GEICO Exposed Again,” below.

In a unanimous decision, the Supreme Court finally brought justice to the land, approving the First DCA’s opinion in Macedo and disapproving of Steele. See Gov’t Employees Ins. Co. v. Macedo, SC16935, 2017 WL 2981812 (Fla. July 13, 2017). It held that the terms “costs” and “legal expenses,” which were undefined in the policy, were ambiguous, and interpreted them in favor of coverage. The Supreme Court also rejected the argument that the expenses were not incurred at GEICO’s request because the policy, like all liability policies, granted the insurer exclusive control over the handling of the liability claim. “Any cost or fee incurred as a result of GEICO exercising its authority and control is something that it intended to pay.” Macedo, 2017 WL 2981812, at *3. Of course, this victory, while far reaching and satisfying, was less than complete. Since the courts naturally have to defer to the legislature on matters of public policy, this decision was limited to the language involved and can be undone by clever insurance companies who can just change their wording. That would be difficult and probably won’t happen all that fast, since the language involved is authored by the ISO and used by many carriers all across the country. Changing those forms is a ponderous task that can take years. That gives the legislature time to do the right thing by insurance consumers and write the Macedo decision into the law, to begin to hold insurers accountable for their litigation decisions in the same way as all other litigants. GEICO Exposed Again A couple of years ago, a handful of committed trial lawyers began to expose the truth about GEICO’s claim handling practices in Florida. See “The Truth is Out About GEICO,” FJA Journal #587, November/ December 2015. Lawsuit discovery uncovered internal memoranda which confirmed what the plaintiff’s bar anecdotally knew to be true – that GEICO would routinely reject reasonable settlement offers and provoke injured claimants to file lawsuits against its own policyholders as part of a scheme to send “a very strong and clear message to the plaintiff’s bar” about GEICO’s “attitude” and “capabilities.” Now, another bad faith case has revealed the driving force behind this exceptionally aggressive approach to settlement negotiations with injured claimants and their lawyers: GEICO’s “Average Loss Payments” (a.k.a. “ALP”) metric. See Gonzalez v. GEICO Gen. Ins. Co., 8:15-CV-240-T30TBM, 2016 WL 2759130 (M.D. Fla. 5-12-2016 and 3-8-2017). Average Loss Payments are exactly what they sound like – the amount paid out to settle liability claims on average. GEICO fastidiously tracks each adjuster’s, manager’s and unit’s ALP on a monthly and annual basis. And while most every insurance company tracks its average settlement payments, GEICO takes it one step further, using ALP as the Sword of Damocles hanging over their adjusters’ and managers’ heads.

As the jury learned in the Gonzalez case, GEICO’s decision-makers were actually graded on how low they could keep their unit’s ALP. The lower the unit’s ALP, the higher scores the managers would receive in their annual evaluations. These scores govern things like promotions, raises, and job retention. Consider the conflict GEICO has created. On the one hand, GEICO’s claim handlers owe their policyholders a fiduciary duty to protect them from any personal exposure above their policy limits. On the other hand, these same claim handlers’ livelihoods depend, at least in part, on them paying out as little as possible on claims, across the board. But that’s not all, folks. The Gonzalez jury also heard evidence that GEICO’s adjusters were trained to start settlement negotiations by making “insultingly low” offers and would then manipulate the data to try to justify the lower offers that GEICO was making. Presented with all this evidence, the Gonzalez jury returned a verdict in the plaintiff’s favor. GEICO paid the judgment in full, plus attorneys’ fees and taxable costs, after dropping its appeal. Of course, GEICO will not voluntarily produce, or even reveal the existence, of such damning evidence without a serious fight. Thankfully, some federal judges have begun to recognize the obstructive discovery tactics frequently employed by GEICO and their counsel. See, e.g., Gonzalez (M.D. Fla. 2-2-2016 and 5-26-2016) (sanctioning GEICO after its counsel made inaccurate representations during a discovery hearing regarding the alleged non-existence of claim file documents); Batchelor v. GEICO Cas. Co., Case No.: 6:11-CV1071ORL37GJK, 2016 WL 3552729 (M.D. Fla. 6-30-2016) (“Notably, the Court lacks confidence in ‘Geico’s representations’ in this action— particularly, ‘anything that Geico might say with respect to what is or is not’ in its files.”). But GEICO’s litigation misconduct does not stop there. In another recent bad faith case, GEICO’s counsel was disqualified after it attempted to profit from privileged information inadvertently disclosed by plaintiff’s counsel. Walker v. GEICO Indem. Co., Case No.: 6:15-CV-1002ORL41KRS, 2017 WL 1174234 (M.D. Fla. 3-302017). Along the way, the court soundly rejected GEICO’s repeated efforts to create a false equivalence between its own conduct and that of plaintiff’s counsel: Defense counsel’s unabashed accusations against Plaintiff’s counsel of being untruthful is disconcerting. … There was no basis for Defense counsel’s recrimination. Before making any such allegations in the future, Defense counsel would be well advised to review the portion of the Oath of Admission to the Florida Bar that states: “To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.” No doubt, GEICO and its counsel have suffered a serious loss of credibility. | July/August 2017 | 19

TIPSFORAUTOPRACTITIONERS May we all speak truth to power, and continue to enlighten judges and juries about GEICO’s claim practices and litigation tactics. Supreme Court Shows Why It’s Time to Claw Back Joint and Several Liability Although the Florida Legislature basically killed joint and several liability a decade ago, its wisdom lives on in Stuart v. Hertz situations. Stuart v. Hertz, of course, is the Florida Supreme Court opinion which held that an initial tortfeasor is responsible for any subsequent injuries caused by the negligence of the plaintiff’s treating physician. 351 So.2d 703 (Fla. 1977). This is so because the negligence of the first tortfeasor is a proximate cause of subsequent tortfeasor’s conduct, such that it will not break the chain of causation. Essentially, with the state of medical care in Florida being what it is, subsequent medical malpractice is always reasonably foreseeable. See, e.g., Letzter v. Cephas, 792 So.2d 481, 485 (Fla. 4th DCA 2001).

control the litigation and settle it for whatever it deemed fair without the plaintiff’s consent, to ensure Allstate was repaid the $1.1 million of policy limits that it had already paid out. The Fifth DCA actually allowed Allstate to pursue this path, holding that the right to equitable subrogation from subsequent tortfeasors arises upon the entry of the judgment against the initial tortfeasor, so long as the judgment represents the victim’s entire damages. Allstate Ins. Co. v. Theodotou, 171 So.3d 163, 167 (Fla. 5th DCA 2015). Thankfully, the Florida Supreme Court, in a 4-3 decision, recently quashed the Fifth DCA opinion and held that neither Allstate nor its insured can bring, or control, the plaintiff’s medical malpractice claim without first fully satisfying the outstanding judgment. Holmes Reg’l Med. Ctr., Inc., 2017 WL 2981863, at *1, 7. And really, if you stop and think about it for a moment, that’s the way it should be.

Maybe it is time to go back and look at the injustice created by the “tort reforms” of 1986, 1999 and 2006. It really is an illogical and unfair piece of social policy to have abrogated joint and several liability almost entirely. Stuart v. Hertz also stops the initial tortfeasor from mucking up the plaintiff’s case against him, prohibiting the initial tortfeasor from presenting evidence of subsequent medical malpractice at trial or filing a third-party complaint against the allegedly negligent treating physician. That is not to say the initial tortfeasor is completely left without remedy. Florida law does allow the initial tortfeasor to go collect that part of the judgment caused by the treating physician’s subsequent negligence. It just has to be through a separate lawsuit for equitable subrogation. See Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702, 704 (Fla. 1980). It is black-letter law that the initial tortfeasor cannot bring an equitable subrogation claim unless he or she first pays off the debt in full. Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999). But in the case of Holmes Reg’l Med. Ctr., Inc. v. Allstate Ins. Co., SC151555, 2017 WL 2981863 (Fla. 7-13-2017), the initial tortfeasor and her insurance carrier, Allstate, tried to skip the part about paying the plaintiff’s damages before bringing their subrogation claim. Even though the plaintiff was still owed more than $10 million on the judgment from the underlying auto accident case, Allstate and the initial tortfeasor attempted to “step in the plaintiff’s shoes” in the subsequent medical malpractice lawsuit against the providers that exacerbated his original injures. Presumably, Allstate wanted to 20 | July/August 2017 |

The initial tortfeasor, who brought on the plaintiff’s misery, should be the one to shoulder the additional loss caused by subsequent foreseeable consequences, at least initially. By making the initial tortfeasor liable for the treating physician’s subsequent medical malpractice, the initial tortfeasor bears the risk of an uncollectable judgment against an insolvent (or asset-protected) doctor, rather than the accident victim who was hospitalized because of the initial tortfeasor’s negligence. This, of course, increases the likelihood that the plaintiff receives fair compensation and decreases the likelihood that the ultimate responsibility for the plaintiff’s care is shifted from the negligent party onto Florida taxpayers. And yet, following the Florida Legislature’s obliteration of joint and several liability, the Stuart v. Hertz rule remains one of the last situations where the tortfeasor can be held liable for more than his or her “fair share.” See, e.g., Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 525 (Fla. 5th DCA 1999) (holding that Fla. Stat. §768.81 only applies to those parties who negligently contributed to the infliction of the initial injury, not to medical providers who subsequently aggravated the injury). Maybe it is time to go back and look at the injustice created by the “tort reforms” of 1986, 1999 and 2006. It really is an illogical and unfair piece of social policy to have abrogated joint and several liability almost entirely.

Creative Attempt to Avoid Vicarious Liability Cap Unsuccessful It is well established that the cap in §324.021(9)(b)3,which limits the liability of the owner who “loans” his or her vehicle to a permissive user, does not apply when the tortfeasor was a co-owner. See Ortiz v. Regalado, 113 So.3d 57 (Fla. 2d DCA 2013). The rationale is that a co-owner does not “loan” a vehicle to another co-owner, because the second co-owner has an equal right to use the vehicle as the first.

Take for example Baptist Hosp., Inc. v. Rawson, 674 So.2d 777 (Fla. 1st DCA 1996), where Fred Levin obtained a $12 million dollar verdict for his client, who was paralyzed as a result of a hospital’s medical malpractice. The hospital was awarded a new trial on appeal, and at the second trial the plaintiff was zipped. But the trial court ordered a new trial, which was affirmed on appeal. Baptist Hosp., Inc. v. Rawson, 734 So.2d 1157 (Fla. 1st DCA 1999).

Attempting to extend that law, the plaintiff in Richbell v. Toussaint, 2017 WL 2664701 (Fla. 4th DCA 6-21-2017) argued that the defendant owner – who was on a road trip with the tortfeasor but was taking a nap in the passenger seat at the time of the wreck – did not “loan” the vehicle to the tortfeasor because they were engaged in a “joint undertaking” at the time of the wreck.

After Round 3, the jury awarded the plaintiff $31 million – more than double what he received in the first trial. The hospital knew better than to give Mr. Levin a fourth opportunity.

If Ms. Bottini’s trial counsel, led by Steve Yerrid, is given another chance to try Mrs. Bottini’s wrongful death case, they could very well recover even more than $30 million the second time around. You know, after The trial court agreed with the plaintiff, but the Fourth DCA reversed, they work out the kinks from their practice run. holding that the owner had “loaned” control of the vehicle to the defendant driver, despite the fact that they were engaged in a joint Florida’s Dangerous Instrumentality undertaking. Doctrine Applies to Out-of-State Crash Choice of law issues can often make or break your case. For instance, The Bottini Saga Continues Florida is the only state that imposes strict vicarious liability on the At the beginning of last year, the Florida Supreme Court conclusively owner of an automobile when the owner entrusts it to another. Fischer extinguished the “Bottini issue.” Well, for everyone other than Mrs. v. Alessandrini, 907 So.2d 569, 570 (Fla. 2d DCA 2005). Bottini, that is. In Ward v. Morlock, 2017 WL 1788020 (Fla. 5th DCA 5-5-2017), As a quick refresher, in 2012, the Second DCA affirmed a $30 a Florida resident on vacation in South Carolina lent his car to million verdict in a UM wrongful death case, holding that any errors his brother-in-law, who then rear-ended a second vehicle which, committed by the trial court that may have affected jury’s computation incidentally, was being driven by another Florida resident. of damages were harmless. Geico Gen. Ins. Co. v. Bottini, 93 So.3d 476 (Fla. 2d DCA 2012). But Judge Altenbernd’s concurring opinion stated The injured claimant filed suit against the owner in Florida. On a that the court lacked authority to review the amount of the verdict motion for summary judgment, the trial court held that South Carolina in excess of the judgment, which was capped at GEICO’s $50,000 law and its “Family Purpose Doctrine” applied, such that the owner policy limits. was not vicariously liable. That concurrence spawned years of confusion and inconsistent rulings On appeal, the Fifth DCA reversed, applying the “significant about whether the verdict rendered in the underlying UM case would relationships test” from Bishop v. Fla. Specialty Paint Co., 389 So.2d stand as the measure of damages for any subsequent bad faith case. 999 (Fla. 1980). That test essentially says the local law of the state where the injury occurred controls unless some other state has a more In the Bottini bad faith case, the Middle District of Florida held that significant relationship with respect to a particular issue, applying the amount of the verdict in a UM case was binding. Bottini v. GEICO seven amorphous factors of Section 6(2) of the Restatement (Second) Gen. Ins. Co., 8:13-CV-365-T-17EAP, 2014 WL 4749054 (M.D. Fla. of Conflict of Laws. 9-23-2014). A year and a half later, the Florida Supreme Court followed suit, seemingly putting that issue to rest once and for all. Fridman v. Special Jury Instruction Language for Punitive Damages Safeco, 185 So.3d 1214 (Fla. 2016). In Persaud v. Cortes, 42 FLW D1144, 2017 WL 2200227 (Fla. 5th DCA 5-19-2017), the court awarded a new trial on the issue of punitive Now, however, the Eleventh Circuit has reversed the Middle District’s damages because the jury instruction omitted the line “you may not order in Bottini, holding that GEICO was denied full appellate review award an amount that would financially destroy the defendant.” See at the Second DCA and that the parties must litigate damages all Fla. Std. Jury Instr. (Civ.) 503.1(c)(2). over again. Bottini v. GEICO, 859 F.3d 987 (11th Cir. 2017). So, the verdict from the underlying UM case is the measure of damages in the subsequent bad faith case for everyone other than Mrs. Bottini. GEICO had better be careful what they ask for. Because if you give a legendary trial lawyer a second, or even third, bite at the apple, they may make the defendant regret the day they appealed the first verdict.


Mr. Steinberg is an attorney at Swope, Rodante P.A. in Tampa. He is a proud graduate of the University of Florida and UF College of Law, where he was a member of the Florida Law Review. Mr. Steinberg is an EAGLE member of the FJA and served as the Chair of the FJA Auto Insurance Committee for 2016-17. He represents victims of catastrophic personal injury, wrongful death, insurance bad faith, legal malpractice and wrongful coverage denials, handling cases throughout Florida and Georgia at both the trial and appellate levels. | July/August 2017 | 21



rror to dismiss claim for negligent procurement of insurance - liability may result from a negligent failure to obtain coverage which is specifically requested or clearly warranted by the insured’s expressed needs.

Kendall South Medical Center, Inc. v. Consolidated Insurance Nation, Inc., d/b/a Insurance Nation, So.3d , 42 FLWD1071a (Fla. 3rd DCA 5-10-17).

Kendall South, a medical center on leased property in North Miami Beach, suffered significant water damage to the premises due to a leaking sprinkler. Kendall South was insured with Insurance Nation (“Nation”) and carried $100,000 in coverage. The policy had a $1,000 deductible and a 90 percent coinsurance clause (a coinsurance clause imposes a penalty upon an insured who purchases coverage that is far less than the full value of the covered property, such that the insurer does not pay the full amount of a covered loss). The property damage totaled $260,000. Kendall South made a claim expecting to receive the policy limits. However, due to the policy’s coinsurance clause, it only received $16,562.67. After bringing negligence claims only against the management company and the company that performed the repairs on the sprinkler system, Kendall South was granted leave to file a Second Amended Complaint to add claims for negligent procurement of insurance and breach of fiduciary duty against Nation. Holding that Kendall South failed to state a cause of action, the trial court dismissed the Second Amended Complaint without prejudice. A Third Amended Complaint, this time dropping the claim for breach of fiduciary duty, was dismissed without prejudice for the same reason. In the Fourth Amended Complaint, Kendall South included allegations that it had met with Nation’s agent and specifically informed the agent that, in addition to having equipment and furnishings worth in excess of $100,000, it had also spent in excess of $100,000 on improvements. Kendall South further alleged that it requested insurance coverage of $100,000 to cover the property, supplies, furnishings, betterments or improvements. Per the Fourth Amended Complaint, Nation advised that it would procure a commercial policy of insurance that would cover and protect all the property, equipment, furnishings and improvements of Kendall South, and as specifically requested. Kendall South alleged that Insurance Nation “had the duty to procure the insurance coverage as requested,” as well as a “duty of reasonable 22 | July/August 2017 |


by Gregory M. Yaffa and Jason Fagnano

care in … properly explaining the policy of insurance procured on [Kendall South’s] behalf.” This duty was allegedly breached when the agent “failed to advise and or inform and or adequately and or properly explain to [Kendall South] the 90 percent coinsurance clause” where the agent “knew or should have known that the policy written by [Insurance Nation] with the 90 percent coinsurance clause would not cover and pay [Kendall South’s] property as requested by [Kendall South] in the event” of a covered claim. The Trial Court dismissed the Fourth Amended Complaint with prejudice, again holding that Kendall South failed to state a cause of action for negligent procurement of insurance. On appeal, the dismissal was reversed. Viewing the complaint in the light most favorable to the plaintiff, the Third District Court of Appeals noted “an agent is required to use reasonable skill and diligence, and liability may result from a negligent failure to obtain coverage which is specifically requested or clearly warranted by the insured’s expressed needs.” Warehouse Foods, Inc. v. Corporate Risk Mgmt. Servs., Inc., 530 So.2d 422, 423 (Fla. 1st DCA 1988). The Court held that the allegations sufficiently stated a cause of action for negligent procurement of insurance. Finally, the court noted that it was not implying that an agent or broker has a general duty of knowing and/ or valuing the contents and improvements of a premises either before procuring, or thereafter renewing, a commercial insurance policy. However, when an insured alleges that it specifically communicated its insurance needs to an agent who then undertook to procure a policy addressing such needs, the insured states a cause of action for negligent procurement where it also alleges that, without providing an explanation that different coverage was required, the agent procured a policy not meeting those expressed needs. Final judgment to be corrected to reflect that insured is required to enter into repair contracts within jury verdict amounts and that FIGA is required to pay actual repair costs to contractors up to the combined statutory cap. Pupo v. Florida Insurance Guaranty Association, D1096b (Fla. 2nd DCA 5-12-17)


, 42 FLW

A breach of contract claim arose after Pupo’s home suffered sinkhole damage and thereafter the parties disagreed over the method of repair

and the amount of insurance proceeds to which Pupo was entitled. Pupo obtained a jury verdict in the amount of $28,000 for aboveground damages and $170,000 for below-ground damages. However the trial court ultimately entered a final judgment in the amount of $135,515, which represented Pupo’s policy limits of $138,115 less her policy deductible and less the statutory deductible.

In subrogation action by insurer against defendant the statute of limitations runs from the date of the damage and not from the time of the alleged negligent repair.

Pupo initiated this appeal arguing that contrary to this and other appellate courts’ prior holdings, the amended definition of “covered claim” in section 631.54(3)(c), Florida Statutes (2011), does not apply to claims arising out of insurance policies that were issued before the effective dates of the statutory amendment. FIGA argued for an affirmance but conceded that remand was necessary because the trial court erroneously limited Pupo’s damages to Pupo’s policy limits. FIGA conceded based on a February 23, 2015, order entered by the Leon County Circuit Court (Second Judicial Circuit Case No. 2011-CA3221) wherein the court determined that FIGA was permitted to pay for actual repairs for sinkhole loss that are above insurance policy limits up to the maximum combined statutory cap of $500,000 pursuant to §631.57(1)(a)(2). FIGA agreed that the final judgment should be corrected to reflect that Pupo is required to enter into repair contracts within the jury verdict amounts and that FIGA is required to pay actual repair costs to the various contractors up to the combined statutory cap. Having been advised during oral argument that the parties reached a settlement, The Second District Court of Appeals affirmed the trial court’s ruling and remanded for correction to reflect that Pupo is required to enter into repair contracts within the jury verdict amounts and that FIGA is required to pay actual repair costs to the contractors up to the combined statutory cap set forth in §631.57(1)(a)(2).

On February 8, 2016, Companion Property & Casualty Group filed a subrogation action against Built Tops. Companion, as the insurer for the property allegedly damaged by Built Tops, asserted a subrogation claim against Built Tops. Companion alleged in its complaint that Built Tops performed the negligent repairs on the insured/subrogor’s roof on or about November 21, 2006 and that as a result, the insured condominium building was damaged by water that permeated through the insured’s roof on February 9, 2012.

Companion Property And Casualty Group v. Built Tops Building Services, Inc., So.3d , 42 FLW D1085b (Fla. 3rd DCA 5-10-17).

On June 24, 2016, Companion filed an amended complaint, as Built Tops did not file a responsive pleading to the initial complaint. On July 8, 2016, Built Tops moved to dismiss the complaint arguing that the action was barred by the 4 year statute of limitations, which began running when the negligent repairs were performed by Built Tops on November 21, 2006. Companion argued the matter was a subrogation action and the statute of limitations began to run on February 9, 2012, the date the “injury” or water loss occurred. The trial court granted Built Tops’ motion to dismiss. The Third District Court of Appeals cited several cases before reversing the trial court’s ruling. An action for negligence does not accrue until the plaintiff suffers an actual loss or damages. Med. Data Sys., Inc. v. | July/August 2017 | 23


Coastal Ins. Group, Inc., 139 So.3d 394, 395 (Fla. 4th DCA 2014). With regard to roof leaks on real property, the statute of limitations begins to run from the time the defect is discovered or should have been discovered. Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla. 1983). The court held that the critical date of loss was February 9, 2012, (date damage was incurred) and that since the initial complaint for negligence was filed on February 8, 2016, the statute of limitations had not expired. Partial summary judgment holding GEICO liable for attorney’s fees judgment under supplemental payments provision of policy is non-final, nonappealable order. Government Employees Insurance Company v. Arreola, FLW D1287b (Fla. 2nd DCA 6-2-17)


, 42

Plaintiffs, Elizabeth and Maria Arreola, filed suit against their own insurance company, GEICO, alleging that GEICO acted in bad faith and breached its fiduciary duty in handling a claim against the Arreolas, that GEICO was vicariously liable for the negligence of the GEICO staff counsel that was assigned to the case by GEICO. The allegations stemmed from a car accident and personal injury action against the Arreolas that resulted in a judgment against the Arreolas in the amount of $80,428.32. In addition, the Court awarded fees in the amount of $121,000 in light of the fact that the attorney assigned by GEICO refused to accept a $25,000 proposal for settlement. In the bad faith action, the Arreolas moved for summary judgment as to the attorney’s fee judgment entered against them, arguing that GEICO was required to pay for these fees under the supplemental payments provision of the Arreolas’ policy. The trial court granted the motion and entered the partial summary judgment, finding that GEICO was liable for the attorney’s fee judgment under the supplemental payments provision in the Arreola’s policy. The judgment also let execution issue. GEICO timely appealed the partial judgment, arguing that the trial court erred in determining that it was liable for the attorney’s fees assessed against the Arreolas. The issue on appeal was whether the partial summary judgment is a nonfinal, nonappealable order. Florida Rule of Appellate Procedure 9.110(k) provides: Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition. However, “not all partial judgments are immediately appealable.”

24 | July/August 2017 |

Hallock v. Holiday Isle Resort & Marina, Inc., 885 So. 2d 459, 461 (Fla. 3d DCA 2004). “[P]iecemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit.” Jensen v. Whetstine, 985 So. 2d 1218, 1220 (Fla. 1st DCA 2008) (quoting S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)). The Court considered three factors in determining whether a partial judgment may be appealed under rule 9.110(k): (1) Could the cause of action disposed of by the partial summary judgment be maintained independently of the other remaining causes of action? (2) Were one or more parties removed from the action when the partial summary judgment was entered? (3) Are the counts separately disposed of based on the same or different facts? The Court found that the partial judgment did not dispose of any claims pleaded in the complaint and that the fee claim was interdependent with at least the bad faith claim which was still pending in the trial court. Per the Court: While the bad faith claim may require proof of additional facts, both claims sound in contract, see Am. Vehicle Ins. Co. v. Goheagan, 35 So.3d 1001, 1003 (Fla. 4th DCA 2010) (“In Florida a bad faith claim is an action ex contractu.”), seek recovery for overlapping damages (the attorney’s fee judgment), and arise from GEICO’s handling of a claim made against the Arreolas. Just because the breach of contract claim centers around a disputed issue of law and the bad faith claim focuses on disputed facts does not render the claims independent of one another… This is illustrated by the fact that the pending bad faith claim has the potential of mooting the issue on appeal. That is, if it is determined that GEICO handled the claim in bad faith, the Arreolas will be able to recover for the attorney’s fee judgment entered against them regardless of whether it was covered by the supplemental payments provision. Accordingly, the Second District Court of Appeals declined to address GEICO’s arguments on appeal, holding that the partial summary judgment was a nonfinal, nonappealable order. Gregory M. Yaffa

is a civil trial lawyer and shareholder at Domnick Cunningham & Whalen. He devotes his practice to representing the victims of catastrophic personal injury, wrongful death and insurance company bad faith. In addition to his successful law practice, Mr. Yaffa has been elected into leadership by several respected professional associations including service as President of the Palm Beach County Justice Association, North County Section of the Palm Beach County Bar Association and Past Chair of the FJA Young Lawyers Section.

Jason Fagnano

is civil trial lawyer with the law firm of Domnick Cunningham & Whalen. He devotes his practice to representing the victims of catastrophic personal injury, wrongful death, medical malpractice and insurance company bad faith. Mr. Fagnano is a former Assistant State Attorney for the 15th Judicial Circuit. As a prosecutor, he conducted over 40 jury trials and his work was recognized with an Exemplary Service Award in 2014.






lorida Supreme Court holds §766.118 caps on noneconomic damages in personal injury medical malpractice cases unconstitutional. North Broward Hospital District v. Kalitan, So.3d , 42 FLW S642 (Fla. 2017). A married couple sued several health care providers for medical malpractice after the wife suffered an esophageal perforation during anesthesia for carpal tunnel surgery. The jury found for the plaintiffs and awarded almost $5 million, most of which was for noneconomic damages. The trial court reduced the noneconomic damage award in accordance with the caps in §766.118, Florida Statutes, rejecting the plaintiffs’ argument that the caps were unconstitutional. In an opinion reported in the July/August 2015 edition of this column, the Fourth District Court of Appeal reversed the trial court, relying on the reasoning in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), which had held similar caps in wrongful death medical malpractice cases unconstitutional. The Florida Supreme Court affirmed that opinion, approving the Fourth District’s analysis and its conclusion that the caps on personal injury noneconomic damages in §766.118 violate the Equal Protection Clause of the Florida Constitution. The Court declined to address the plaintiffs’ additional constitutional challenges. Fourth District quashes trial court order granting juror interviews after medical malpractice defense verdict. Children’s Medical Center, P.A. v. Kim, So. 3d , 2017 WL 2664687 (Fla. 4th DCA 6-212017). The parents of a child who suffered a severe brain bleed two weeks after his vacuum-assisted delivery sued the child’s pediatricians and their practice for their allegedly negligent failure to diagnose the bleed. The juror questionnaire used during voir dire asked, Have you or any family member ever been sued or have you sued someone else? (This includes suits which were settled after being filed.) If so, please explain. After a defense, the plaintiffs discovered through a public records search that two jurors who had answered “no” to the question about suing or being sued actually may have had undisclosed histories with the court system. According to the plaintiffs’ motion to interview the two jurors, 26 | July/August 2017 |

by Scott R. McMillen & Allison McMillen

a public records search had found that someone with the same name as L.H., one juror, had tried to get a restraining order against her husband in 2008, and the docket in that case cited “domestic violence with children.” Someone with the same name as another juror, E.T., had been the respondent in several domestic violence cases and had had a 2015 stalking case dismissed. According to the plaintiffs, this information was relevant at least partly because one of the issues in the medical malpractice case had been whether the child’s injury had been caused by abuse. The trial court granted the interviews and the defendants filed a petition for writ of certiorari. The Fourth District quashed the trial court’s order, finding that the plaintiffs had not met the criteria to show they were entitled to post-trial juror interviews. The Court explained that, under De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995), this three-part test requires proof that, “(1) The concealed information was relevant and material to jury service in the case; (2) The juror concealed the information during questioning; and (3) The failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Applying the test to the case at hand, the Fourth District found that the plaintiffs had failed all three prongs. The Court explained that in determining relevance and materiality under the first prong, courts may look to see how the moving party treated other potential jurors with similar attributes. Here, the Court found, it was apparent from the transcripts of plaintiffs’ counsel questioning other potential jurors that they were “not concerned with either prior litigation, in general, or child abuse, in particular.” The Court also pointed out that most of the litigation history the plaintiffs cited in support of their motion for interviews was remote and that it was not even certain the history belonged to the two jurors in question. Under the second prong, the Fourth District found that the jurors could not be said to have concealed the information, because the question asked of them was “not straightforward” and was “reasonably susceptible to misinterpretation.” Looking at the third prong, the Court found the plaintiffs did not satisfy the due diligence requirement, because they did not adequately explain the information they were looking for from the jurors. Under this prong, the Court also took into account the fact that the plaintiffs delayed researching the jurors’ histories: although there were ten days between the end of plaintiffs’ voir dire and the

start of defendants’ voir dire, and eleven more days between the close of evidence and closing arguments, plaintiffs apparently did not start their investigation until after the unfavorable verdict. Second District quashes trial court order reinstating medical malpractice complaint after dismissal based on failure to comply with presuit expert “same specialty” requirement. Clare v. Lynch, So.3d , 2017 WL 2664320 (Fla. 2d DCA 6-21-2017). A former patient sued her orthopedist and his practice for medical malpractice. During presuit, the patient used a corroborating affidavit from a podiatrist instead of an orthopedist, ignoring the defendants’ assertion that the affidavit was improper. After the plaintiff filed suit, the defendants moved to dismiss based on the plaintiff’s failure to comply with presuit requirements. The trial court initially dismissed the case, then reinstated the complaint on rehearing, and the defendants filed a petition for writ of certiorari. The Second District reversed based on the plain language of Chapter 766, Florida Statutes, which requires that a presuit affidavit against a doctor who is a specialist be from someone practicing in the same specialty. Since the defendant was a board-certified orthopedic surgeon and the plaintiff’s affidavit was from a board-certified podiatrist, the Second District held, the affidavit did not comply with presuit requirements on its face. The Court noted that since the Legislature in 2013 deleted old provisions in the statutes

permitting affidavits from those in a similar specialty and giving the trial court broad discretion in qualifying experts, the plaintiff’s argument that the defendant and her presuit expert both did foot and ankle surgery was unavailing. The Court also noted that it was not ruling on the issue of the constitutionality of the same specialty requirement or the effect of In re Amendments to the Florida Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2017), in which the Florida Supreme Court recently declined to adopt the requirement to the extent it is procedural, because those issues had not been raised and argued. Fourth District holds claims bill provision limiting attorney fees unconstitutionally impairs fee contract. Grossman Roth, P.A. v. Mellen, So. 3d , 2017 WL 2665078 (Fla. 4th DCA 6-21-2017). In a medical malpractice suit against a hospital with sovereign immunity, the hospital agreed to settle the case for $3 million total, pay the $200,000 limit under the statutory sovereign immunity cap, and support the plaintiff in seeking to have a claims bill passed awarding the other $2.8 million. Plaintiff’s counsel succeeded in obtaining a claims bill for the remaining damages, but the bill limited attorney fees to 15 percent of the first $1 million awarded, 10 percent of the second $1 million, and 5 percent of the remaining amount, for a total of $290,000 in fees. Under the fee contract signed at the beginning of the representation, the plaintiff’s counsel was entitled to a 25 percent

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fee, or $750,000. The plaintiff agreed to let her law firm hold another $410,000 in escrow, pending resolution of a dispute over what fees the firm was entitled to. The client then filed a declaratory judgment action seeking the $410,000, and the law firm counterclaimed, arguing that the fee limitation was unconstitutional. The trial court ruled for the client, and the Fourth District reversed, noting that the trial court did not have the benefit when it ruled of the recent Florida Supreme Court opinion in Searcy, Denney, Scarola, Barnhart & Shipley v. State, 209 So.3d 1181 (Fla. 2017), which held a similar fee limitation to be an unconstitutional impairment of the preexisting attorney fee contract. Fourth District reverses summary judgment, finds pre-injury release unenforceable due to ambiguity. Brooks v. Paul, So.3d , 2017 WL 2457247 (Fla. 4th DCA 6-7-2017). A patient and her husband sued a neurosurgeon and his professional association after the patient’s ureter was allegedly cut during a spinal fusion surgery. Before the surgery, the patient had executed a release stating the following: As of January 1, 20113, [defendants] will not carry any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to sue [defendants] for any reason. My reason for doing this is that I realize that [neurosurgeon defendant] and his staff will do the very best to take care of me according to community medical standards. The trial court granted the defendants’ motion for summary judgment, finding that the release was “completely unambiguous” in releasing claims for negligence. The Fourth District reversed, holding that, read as a whole, the release was “rife with ambiguity and uncertainty.” The Court pointed out that the purported release clause was in smaller font below a statutory notice that the doctor did not carry malpractice insurance, was “not thorough or detailed,” failed to release any specific types of claims, and was made up of only three sentences, which contradicted each other. The Court found that, although the first two sentences standing alone might have functioned as a viable release for negligence, the third sentence, which qualified the first two, created ambiguity, because it could be interpreted to mean that the defendants were only being released for injuries that might occur without any fault of defendants, and despite defendants’ taking care of the patient “according to community medical standards.” Fourth District reverses directed verdicts on fraud, apparent agency, and joint venture in malpractice suit against “concierge medicine” company. MDVIP, Inc. v. Beber, So.3d , 2017 WL 2364729 (Fla. 4th DCA 5-31-2017). A patient sued several parties after alleged malpractice by her primary doctor caused her to need an above-the-knee amputation. Before trial, the plaintiff passed away from unrelated problems, and the personal representative of her estate continued the suit. By the time of trial, the only remaining defendant was a self-described “personalized healthcare program” with which the primary physician and his practice were affiliated. The plaintiff brought vicarious liability claims against the program for the doctor’s alleged negligence, based on actual and apparent agency and joint venture, as well as claims of fraud based on purportedly misleading advertising and marketing statements. The facts at trial showed that the defendant was a “concierge medicine” company which charged members an annual fee 28 | July/August 2017 |

in exchange for certain purported benefits, such as better and quicker access to doctors and more personalized services. The facts showed that the original plaintiff had joined the program partly so that she could maintain a relationship with the same doctor she had already been seeing before the doctor joined the program. The plaintiff testified that her other reasons for joining the program were for the accessibility of other doctors and hospitals, and for quick services. During trial, the court denied the defendant’s motion for directed verdict on the fraud issue, and granted the plaintiff’s motion for directed verdict on apparent agency and joint venture. The jury found for the plaintiff on all claims, and awarded over $8 million, mostly for noneconomic damages. After the trial court reduced the award based on the caps in §766.118, Florida Statutes, the plaintiff appealed the caps issue and the defendants appealed based on the motions for directed verdict. The Fourth District found that all of the statements on which the plaintiff based his claim of fraudulent misrepresentation were either opinion and puffery, or else the plaintiff had failed to show the defendant knew they were false when making them. Therefore, the Court held, there was no view of the evidence that would sustain a verdict on the fraud claims, and the trial court had erred in denying the defendant’s motion for directed verdict. The Court held that the trial court had also erred in granting directed verdicts on the issues of apparent agency and joint venture, because a reasonable jury could have concluded based on the evidence that not all the elements of each were met. For example, the Court noted, evidence presented at trial that the defendant had mailed a document to the plaintiff expressly disclaiming any agency relationship with the doctor was enough for a reasonable jury to find that the apparent agency elements of representation and reliance were not met. Similarly, the fact that the doctor maintained control over his own medical decisions and day-to-day practice could have led a jury to conclude there was no joint control, a necessary element of joint venture. The plaintiff argued that the errors were harmless, because the jury had found that the doctor was the defendant program’s actual agent. The Fourth District rejected this argument on the grounds that the jury instructions failed to make the jury aware they should not allow the directed verdicts on the other issues to affect their decision on the issues they were deciding, and the plaintiff’s counsel made statements in closing argument that could have further misled the jury on the issue. Therefore, the Court affirmed the size of the damage award and the jury’s finding that the doctor was negligent, but reversed and remanded for a new trial on the three claims of vicarious liability. SCOTT R. MCMILLEN

Mr. McMillen is the founder of McMillen Law Firm, P.A, with a principal office in Orlando and satellite offices around the state and in Atlanta, Georgia. He is currently a member of Florida Bar Board of Governors, and a past President of the Central Florida Trial Lawyers Association, The Orange County Bar Association and The Legal Aid Society of the Orange County Bar Association. Mr. McMillen has been representing medical negligence victims throughout Florida and Georgia for nearly 30 years.


Ms. McMillen graduated magna cum laude from the University of Miami School of Law in 2007. Ms. McMillen is a member of The Order of the Coif, the Central Florida Trial Lawyers Association, the Central Florida Association for Women Lawyers, and the George C. Young First Central Florida American Inns of Court. She practices with the McMillen Law Firm, P.A., in its Orlando office.

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This past session, the Florida Legislature passed, and the Governor promptly signed into law, House Bill 221. This bill constitutes a statewide overhaul of the laws governing transportation network companies (“TNCs”) like Uber and Lyft. Unfortunately, the legislation has horrible ramifications for consumers who are injured by a TNC driver, as it effectively eliminates certain legal theories. Thankfully, there are still viable avenues to recovery under the right facts and with enough ingenuity and persistence.

by C. Richard Newsome and William C. Ourand


his article will summarize the current law of the land with respect to suing TNCs after the enactment of HB 221, including a specific discussion of the causes of action which remain available for injured Floridians.

HB 221: The “Good,” The Bad, and The Ugly Make no mistake, HB 221 – which is codified at Section 627.748, Florida Statutes (2017) and took effect on July 1 of this year – is heavily skewed to favor and serve the interests of Lyft and Uber, with very little offsetting benefits for consumers. This is particularly true with respect to personal injury litigants. Most critically, the new law determines, via legislative fiat rather than reasoned judicial analysis, that Lyft, Uber, and other TNCs are not “common carriers.”1 That determination has profound implications. Under Florida law, a common carrier owes an “elevated, nondelegable duty of care” to provide safe passage.2 Moreover, “a common carrier cannot relieve itself from its primary duty to maintain safe accommodations for its passengers and their baggage by contracting with an independent contractor to perform its functions.”3 Over the last several decades, Florida courts have held that taxi cabs, city buses, airlines, ambulances, and airport limousines, among other transportation service providers, are common carriers who owe a heightened, non-delegable duty of care to their passengers.4

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Although no Florida court had occasion to weigh in on the common carrier doctrine’s applicability to Lyft and Uber, the doctrine had been successfully asserted elsewhere. Notably, in Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774 (N.D. Cal. 2016), the court denied Uber’s Motion to Dismiss, in part, reasoning that the two Jane Doe plaintiffs sufficiently pled claims against Uber under the common carrier doctrine which could potentially render the company liable for the sexual assaults its drivers allegedly committed. The new law robs future Florida litigants from making the common carrier arguments that were successfully advanced in the California action. The new law also provides a statutory resolution to the question of whether TNC drivers are “employees” or “independent contractors.” Of course, this classification has major implications for tort law, including, perhaps most notably, for vicarious liability under the respondeat superior doctrine. Under the new law, TNC drivers are considered to be independent contractors and not employees so long as the TNC: (1) does not unilaterally set hours; (2) does not prohibit drivers from using other TNC networks; (3) does not restrict the driver from engaging in other trades; and (4) agrees in writing with the driver that the driver is an independent contractor.5 One can safely assume that Lyft and Uber will do everything they can to meet these requirements in all cases moving forward. As a small silver lining, the retroactivity clause of the independent contractor provision was stripped

out in the committee process, so there remain some cases for which this provision does not apply. So, what did consumers receive in compromise for the significant legal rights taken away by the bill? For injured consumers, the so-called protections afforded by the bill come primarily in the form of insurance “requirements.” However, those “requirements” are, in reality, nothing more than a codification of the status quo. Lyft and Uber have had policies affording various phases of coverage ranging between $0 and $1,000,000 since at least 2014.6 These different phases of coverage have long worked, and will continue to work under the bill, as follows: •

$0: When the driver is not logged into the app. The plaintiff must instead look to the driver’s personal policy—should one exist, and should no coverage exclusions apply.

$50K per injury/$100K per incident/$25K for property damage: When the driver is logged in, but has not accepted a ride request.

$1,000,000: When the driver is logged in and has accepted a ride request.

The bill also contains a variety of background check requirements. Again, both Lyft and Uber claim to have been doing this for years, so it is hard to view this as a new protection for consumers, or as justifying any type of significant tradeoff of consumer rights. 7 Thankfully, however, the new law expressly provides that mere compliance with these minimal requirements “does not extinguish any claim otherwise available under common law or any other statute.”8 As will be discussed in the next section, this provision helps to preserve critical negligence theories. What’s Left? In some cases, the $50K, $100K, or $1M limits covering the driver’s negligence may prove sufficient. However, in cases involving severe or catastrophic injuries, the medical bills alone can greatly exceed these figures. In such instances, it may become necessary to pursue a claim for direct or vicarious liability against the company itself. The respondeat superior and common carrier doctrines provided strong theories to pursue against Lyft and Uber in Florida just a few months ago. Those specific doctrines, however, have been taken off the table by HB 221. As a result, pursuing a claim against Lyft or Uber has become far more difficult. Thankfully, with the right facts, there are still viable theories to pursue against the companies themselves. The following is a brief summary of the theories which are still viable. The list is by no means exhaustive, and of course, the theories applicable to each individual case will vary, so independent research into the law and facts is a must before pursuing any Lyft or Uber case. Negligent Hiring/Selection and Negligent Retention Plaintiffs can still pursue various direct negligence theories in the appropriate circumstances. Most prominently, claims for negligent hiring or selection should be explored in each case. Of course, these theories generally hinge on locating some type of “red flag” in the

driver’s background that should have tipped the company off to the person’s dangerous or unsafe characteristics and propensities. Unfortunately, this can prove particularly problematic in cases involving a driver who recently immigrated into the country, in which case it can be difficult or impossible to vet the full extent of the driver’s history. For instance, in the California Jane Doe 1 and 2 case referenced above, the court dismissed one of the plaintiff’s negligent hiring claims, and reasoned that plaintiff’s allegations that “Dakiri [the driver] had been in the country for less than three years” failed to establish that there was anything “that should have prevented Uber’s approval of Dakiri as a driver.”9 Of course, red flags can also arise during the course of the driver’s relationship with the company. Examples of such red flags include complaints by other customers, traffic citations, and arrests. In such instances, it may be possible to pursue a negligent retention claim. Notably, the new legislation requires TNCs to maintain “individual records of TNC drivers for at least 1 year after the date on which the TNC driver’s relationship with the TNC ends.”10 Those records should be sought in discovery in any case against Lyft or Uber, and carefully reviewed for any passenger complaints or other issues that could support a negligent retention theory. Negligent Training, Supervision, and Monitoring In addition to hiring and retention theories, it may also be possible to pursue claims for negligent training, supervision, and monitoring. When pursuing one of these claims, it is critical to review the company’s websites, advertisements, and public statements to look for, among other things, any claims the company has made with respect to its ability to monitor drivers and provide feedback to them. For example, Dorothy Chou, Uber’s “Head of Safety, Consumer Protection, & Self Driving Public Policy” recently stated that, through the company’s telematics test programs—which use the accelerometers, GPS’s, and gyroscopes in the driver’s phones—Uber has “empowered drivers with information to allow them to drive more safely.”11 Recent reports claim that the company has seen “a 5 percent reduction in passengers complaints about driving and an 8.5 percent reduction in drivers speeding over 80 mph,” since instituting the telematics programs.12 The ability to monitor and provide feedback to drivers could possibly establish the requisite ability to control that could, in turn, help form the basis for a cognizable negligence claim in instances where such control was not exercised to prevent foreseeable harm. Fraud and Misrepresentation Moreover, the companies’ public statements and advertisements may also provide a basis for a fraud or misrepresentation claim. In the California Jane Doe 1 and 2 case, the court held that the plaintiffs stated valid fraud claims based on Uber’s statements regarding passenger safety.13 In so ruling, the court explained that “[i]t is reasonable . . . to infer from the allegations in the complaint that Doe 1 and Doe 2 assert that they accepted rides from Uber drivers in reliance on the statements Uber made regarding rider safety.”14 The allegations specifically quoted and paraphrased by the court include: | July/August 2017 | 31

PRODUCTSLIABILITY (1) “Uber made false statements that riders would be safe taking rides through Uber, while knowing that Uber ‘had not adequately screened its drivers;’” and (2) “Uber fraudulently misrepresented its ability to track its drivers ‘and ensure that the drivers were taking the most direct routes to Plaintiffs’ destinations, instead of going far off-route.’”15 Non-Delegable Duty of Care Although the new law provides that TNCs are not “common carriers,” this legislative categorization should not control the determination as to whether a TNC owes a non-delegable duty of care. After all, non-delegable duties are not confined and etched into stone to the specific categories previously recognized by the courts. Instead, Florida common law has long recognized that “[t]he existence of special relationships or public policy considerations may give rise to non-delegable duties.”16 In the case of traditional common carriers, Florida courts recognized the existence of a non-delegable duty of care based on the reality that “the passenger must entrust his or her bodily safety to the care and control of the carrier’s vehicle and employees, and he or she cannot freely or independently walk away, once the undertaking has commenced.”17 The exact same thing is true in the case of TNCs. When a Floridian enters a Lyft or Uber, they are no better able to “freely or independently walk away” than they would be if they were in a taxi cab, airport limousine, or city bus. There is simply no legally significant reason why the TNC passenger should be owed a lesser duty than that owed to the taxi cab, airport limousine, or city bus passenger. Of course, TNCs will strongly argue against the imposition of a nondelegable duty of care. Indeed, in other jurisdictions they have even argued that they are not transportation service providers at all, but are instead mere “technology companies” or “brokers.” Our research shows that these arguments have been soundly rejected. As explained by one court: Uber’s self-definition as a mere ‘technology company’ focuses exclusively on the mechanics of its platform (i.e., the use of internet enabled smartphones and software applications) rather than on the substance of what Uber actually does (i.e., enable customers to book and receive rides). This is an unduly narrow frame. Uber engineered a software method to connect drivers with passengers, but this is merely one instrumentality used in the context of its larger business. Uber does not simply sell software; it sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch taxi cabs, John Deere is a ‘technology company’ because it uses computers and robots to manufacture lawn mowers, or Domino Sugar is a ‘technology company’ because it uses modern irrigation techniques to grow its sugar cane. Indeed, very few (if any) firms are not technology companies if one focuses solely on how they create or distribute their products. If, however, the focus is on the substance of what the firm actually does (e.g., sells cab rides, lawn mowers, or sugar), it is clear that Uber is most certainly a transportation company, albeit a technologically sophisticated one. In fact, as noted above, 32 | July/August 2017 |

Uber’s own marketing bears this out, referring to Uber as ‘Everyone’s Private Driver,’ and describing Uber as a ‘transportation system’ and the ‘best transportation service in San Francisco.’18 In short, regardless of the labels the Legislature has chosen to apply or not apply, a strong argument can be made that TNCs owe a nondelegable duty of care based on the nature of the undertaking and services at issue. Partnership and Joint Venture/Enterprise A plaintiff may also consider pursuing partnership or joint venture theories. The gist of this type of theory would be that Lyft and Uber enter business relationships with their drivers revolving around transporting passengers for a profit. If successful, these types of theories could possibly lead to vicarious or imputed liability on the part of the companies for their drivers’ torts.19 Unfortunately, Judge Batts of the United States District Court for the Southern District of New York recently dismissed a partnership claim in a case involving an alleged assault committed by an Uber driver.20 In so ruling, the court recited the partnership factors contained in New York substantive law and determined that the plaintiffs “failed to allege that any of these partnership factors are present between [the driver] and Uber.”21 However, given that the court was applying different substantive law, and that the pleading apparently had several deficiencies, the New York decision should be distinguishable from a Florida case with different allegations to support the existence of the relationship at issue. Conclusion HB 221 radically altered the legal landscape with respect to pursuing claims against Lyft and Uber on behalf of injured Floridians. Most significantly, the bill effectively eliminated certain specific causes of action. However, with the right facts, ingenuity, and persistence, there are still viable causes of action that can be pursued in these cases. _________ Fla. Stat. §627.748(2). Hinckley v. Palm Beach Cty. Bd. of Cty. Comm’rs, 801 So. 2d 193, 196 (Fla. 4th DCA 2001); Nazareth v. Herndon Ambulance Serv., 467 So. 2d 1076, 1079 (Fla. 5th DCA 1985). 3 Hinckley v. Palm Beach Cty. Bd. of Cty. Comm’rs, 801 So.2d 193, 196 (Fla. 4th DCA 2001). 4 3-100 Florida Torts §100.03 (2017) (collecting cases). 5 Fla. Stat. §627.748(9). Although the independent contractor provision is obviously harmful to causes of action premised on an employer-employee relationship, the harm done there is softened by the reality that the Third District Court of Appeal had issued a horrible order on this issue back in February. In that decision, McGillis v. Department of Economic Opportunity, a former Uber driver appealed, pro se, the Department’s determination that he was not entitled to unemployment benefits. The court affirmed the Department’s determination, reasoning, in part: “Uber and McGillis contractually agreed that McGillis’ work did not make him an employee. A review of the parties’ working relationship confirms this understanding. Due in large part to the transformative nature of the internet and smartphones, Uber drivers like McGillis decide whether, when, where, with whom, 1 2

and how to provide rides using Uber’s computer programs. This level of free agency is incompatible with the control to which a traditional employee is subject.” McGillis v. Dep’t of Econ. Opp., 210 So. 3d 220, 226 (Fla. 3d DCA 2017). 6 Uber Newsroom, Insurance for Ridesharing with Uber,, available at (Feb. 10, 2014) (last accessed July 10, 2017); Lyft Blog, Lyft’s Insurance Policy,, available at posts/2014/7/10/lyfts-primary-insurance-coverage (July 10, 2014) (last accessed July 10, 2017). 7 Rich McCormick, Uber Expands Background Checks for All US Drivers,, available at https://www.theverge. com/2014/2/13/5407606/uber-new-expanded-background-checksfor-us-drivers (Feb. 13, 2014) (last visited July 10, 2017); Leonor Vivanco and Cynthia Dizikes, Gaps in Some Ride-Sharing Firms’ Background Checks, Chicago Tribune, available at http://articles. (Feb. 14, 2014) (last accessed July 10, 2017). 8 Fla. Stat. §627.748(11). 9 Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774, 789 (N.D. Cal. 2016). 10 Fla. Stat. §627.748(14). 11 Mary Wisniewski, Uber Says Monitoring Drivers Improves Safety, But Drivers Have Mixed Views, Chicago Tribune, available at http:// (Dec. 19, 2016). 12 Id. 13 Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774, 789-90 (N.D. Cal. 2016).

Id. Id. 16 Hinckley v. Palm Beach Cty. Bd. of Cty. Comm’rs, 801 So. 2d 193, 196 (Fla. 4th DCA 2001). 17 Nazareth v. Herndon Ambulance Serv., 467 So. 2d 1076, 1079 (Fla. 5th DCA 1985). 18 O’Connor v. Uber Techs., 82 F. Supp. 3d 1133, 1141-42 (N.D. Cal. 2015). 19 2-50 Florida Torts §§50.20-50.21(2017). 20 Phillips v. Uber Techs., Inc., 2017 U.S. Dist. LEXIS 94979 (S.D.N.Y. June 14, 2017). 21 Id. at *19-20. 14 15


is the managing partner of the Newsome Law Firm, representing consumers who have been catastrophically injured by defective products. Mr. Newsome has published dozens of articles about the law and practice of product liability litigation that have received national recognition. Mr. Newsome was the 2010 – 2011 FJA President.


Will Ourand graduated magna cum laude from the Florida State University College of Law where he served for two years on the editorial board of the Law Review. After graduation, he was inducted into the Florida State Chapter of the Order of the Coif. He is currently an associate at Newsome Melton, where he represents consumers in products liability and class action lawsuits.

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OF FRIVOLOUS LITIGATION ARE BEING SHORTCHANGED: Expert Fees Not Recoverable as Costs Under Section 57.105(1)


wards of attorney’s fees as a sanction against litigants and their attorneys who file frivolous claims and defenses are exceedingly rare. In those egregious cases where your opponent’s wrongful litigation misconduct cost your client time and expense, one would expect that the courts are receptive to the proposition that the victims of such meritless litigation should be fully compensated for their expenses in handling such frivolous claims and defenses. However, that is not the effect of a recent holding by the Second District Court of Appeal, which has rendered a decision in conflict with other districts on the important point whether expert witness fees are compensable as costs in proceedings to recover attorney fees necessitated by such litigation misconduct. In overview, in Assimakopoulous v. Assimakopoulous-Panuthos, No. 2D15-4205; 2017 Fla. App. LEXIS 9102; 42 FLW D1438 (Fla. 2d DCA 6-23 2017), the court held that fees charged by attorneys appearing as expert witnesses are considered as costs, and that such costs are not recoverable under §57.105(1). Although still pending on motions for rehearing as of press time, and likely to be reviewed by the Supreme Court of Florida, the Second District’s decision, if upheld, could greatly shortchange victorious parties who successfully fight against frivolous positions taken in litigation, and who retain expert witnesses to testify about the amount of fees that should be recovered. This article warns our readers about the situation, and proposes an alternative for recovering such expert witness fees notwithstanding the holding in Assimakopoulous. Section 57.105(1) provides as follows: Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

34 | July/August 2017 |

(a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. As noted by the Second District in its decision, “as is clear from the plain language of the statute, the sanction permitted is an award of attorney’s fees only. Costs are not included.” Id. at * 6. Because the statute is in derogation of the common law, it must be strictly construed. So construed, successful litigants who recover fees from opponents taking frivolous positions will have to pay their own attorney’s fee experts. The court in Assimakopoulos came to the conclusion that expert witness fees—even those charged by an attorney at a fee hearing—are “costs” and not “fees,” by first noting that §92.231(2), Fla. Stat. provides in pertinent part: “Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in an amount agreed to by the parties, and the same shall be taxed as costs.” (Emphasis added). Further, the Florida Supreme Court has specifically held that “expert witness fees . . . may be taxed as costs for a lawyer who testifies as an expert as to reasonable attorney’s fees.” Travieso v. Travieso, 474 So.2d 1184, 1186 (Fla. 1985) (emphasis added). Once categorizing expert fees as costs, the decision that they are not recoverable under §57.105(1) was supported by several appellate decisions on that general subject. Many courts, including the Second District, have specifically held that an award of sanctions under §57.105(1) may not include costs. See, e.g., Heldt-Pope v. Thibault, 198 So.3d 650, 652 (Fla. 2d DCA 2015) (affirming award of attorney’s fees under §57.105(1) but reversing the award of costs because “section 57.105(1) does not provide for the award of costs”); Siegel v. Rowe, 71 So.3d 205, 210 n.2, 214 (Fla. 2d DCA 2011) (reversing cost award under §57.105(1) against attorneys as unauthorized but affirming it against the party under §57.041(1)); Jackmore v. Estate of Jackmore, 145 So.3d 170, 170 (Fla. 1st DCA 2014) (reversing award of costs under §57.105(1) because such an award “is not authorized”); Ferere v. Shure, 65 So.3d 1141, 1145 (Fla. 4th DCA 2011) (stating that an award of costs is not permitted under §57.105(1)); Santini v. Cleveland

by Roy D. Wasson

Clinic Fla., 65 So.3d 22, 36 (Fla. 4th DCA 2011) (same); Ferdie v. Isaacson, 8 So.3d 1246, 1251 (Fla. 4th DCA 2009) (same).

Although there is language in other cases which may indicate that costs have been awarded under §57.105(1), the Second District distinguished most of those decisions, which do not clearly hold that costs are recoverable under that statute. For example, in Wells v. Halmac Development, Inc., 184 So.3d 620, 622 (Fla. 3d DCA 2016), the issue on appeal was whether prejudgment interest should have been awarded on the attorney’s fee award—not whether costs were properly awarded. While the attorney’s fees had apparently been awarded under §57.105, the opinion notes that $1,409.77 in costs and $7,200 in expert witness costs were also included in the judgment. Id. However, the discussion of the award under §57.105(1) does not mention the costs or expert witness fees, and the party recovering the fees and costs was also the prevailing party in the appeal and so would have been entitled to an award of costs under §57.041(1). Id. at 622-23. Therefore, it is not clear that Wells actually stands for the proposition that costs are recoverable under §57.105(1). Likewise, in Indemnity Insurance Co. v. Chambers, 732 So.2d 1141, 1142 (Fla. 4th DCA 1999), the trial court granted defendant Tetra Pak’s motion to dismiss and found that it was entitled to an award of “attorney’s fees under section 57.105(1).” The trial court also awarded Tetra Pak its expert witness fees, but the basis for this award is not identified in the opinion. As in Wells, Tetra Pak was the prevailing party and would have been entitled to an award of costs under § 57.041(1). Thus, the court’s opinion does not clearly affirm an award of costs under §57.105(1). Two stronger cases appear to affirm an award of costs under §57.105(1). In Martin County Conservation Alliance v. Martin County, 73 So.3d 856 (Fla. 1st DCA 2011), the appellate court dismissed an appeal and then, on its own initiative, awarded sanctions under §57.105(1). While the decision repeatedly states that Martin County is entitled to recoup its attorneys’ fees under §57.105(1), see Id. at 857, 858, at the end of the opinion, the court awards both attorneys’ fees and costs under the authority of §57.105(1). Id. at 865. Likewise, in Smith v. Viragen, Inc., 902 So.2d 187, 191 (Fla. 3d DCA 2005), the court affirmed an award of both attorney’s fees and costs, noting that it need not distinguish between the amounts awarded under section 895.01, Florida Statutes, and §57.105 “because the entire award could have been made pursuant to section 57.105 alone.” However, in rejecting those decisions, the Second District in Assimakopoulos held that, “[a]s in Martin County, the award of costs on this basis conflicts with the plain language of §57.105.

As noted above, if the award of sanctions is made following a final judgment in favor of the plaintiff, as opposed to being based on frivolous positions taken during pretrial proceedings, costs will be recoverable to the prevailing party under § 57.041(1). But if the fees and costs you are seeking are based on frivolous positions taken by the other side during the litigation, as opposed to being based on being the prevailing party in the overall case, here is a suggestion for you in preparing your motion under §57.105: Do not just cite subsection (1) of that statute; cite subsection (2) as well. Subsection (2) of that statute provides for recovery of sanctions under the following situations: (2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay. (Emphasis added). Thus, as noted by the Second District, “[t]he nontaxability of costs under §57.105(1) is in contrast with the plain language of §57.105(2), which provides for a sanction of “damages,” measured as the “reasonable expenses incurred in obtaining the order,” when the court finds that an action taken by the opposing party was taken primarily for the purpose of unreasonable delay. Under subsection (2), costs could be included as part of damages; however, this language is absent from subsection (1), which provides only for an award of attorney’s fees. Surely a creative lawyer can characterize frivolous positions taken by the other side to be taken “primarily for the purpose of unreasonable delay.” Therefore, make your sanctions motion under both subsections and you should not be shortchanged. Case Summaries in Civil Procedure “Two Dismissal Rule” Does Not Preclude Subsequent Lawsuit. Under Fla. R. Civ. P. 1.420(a)(1), a party may voluntarily dismiss an action and, “[u]nless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that at notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has | July/August 2017 | 35


once dismissed in any court an action based on or including the same claim.” This provision is often referred to as the “two dismissal rule.” Edmondson v. Green, 755 So.2d 701, 704(Fla. 4th DCA 1999). In Forero v. Green Tree Servicing, No. 1D16-2151; 2017 Fla. App. LEXIS 10145 (Fla. 1st DCA 7-14-2017), the court held that the plaintiff properly filed a second lawsuit against the defendant notwithstanding the fact that it had previously voluntarily dismissed an action against that defendant two times, holding: “the two dismissal rule does not bar a subsequent suit. The two dismissal rule merely states that when the rule applies the dismissal of the second suit operates as an adjudication on the merits. Once there is an adjudication on the merits, it is the doctrine of res judicata which bars subsequent suits on the same cause of action.” Id. at *5. Because the issues involved in the second lawsuit were not identical to those involved in the case that had twice been dismissed, the plaintiff in Edmondson was permitted to go forward notwithstanding having voluntarily dismissed the action twice before. Untimely Forum Non-Conveniens Motion. Fla. R. Civ. P. 1.061(g) provides that “[a] motion to dismiss based on forum non-conveniens shall be served not later than 60 days after service of process on the moving party.” In Topic v. Topic, No. 3D17-52; 2017 Fla. App. LEXIS 8333 (Fla. 3d DCA 6-7-2017), the court held that the trial judge had no discretion to grant a motion to dismiss based on forum nonconveniens when that motion was served more than 60 days after the moving defendant had been served with the summons and complaint, holding that “[t]he law is well established that where a motion to dismiss based on forum non-conveniens is untimely, the motion is time-barred and must be denied.” Id. at *5. Challenge to Jurisdiction Not Waived by Omission From Motion to Dismiss. In Volkswagen Aktiengesellschaft v. Jones, No. 2D15-5716; 2017 Fla. App. LEXIS 6958 (Fla. 2d DCA 5-17-2017), the court rejected the plaintiff’s argument that the defendant had waived its challenge to personal jurisdiction by failing to raise that defense in its first motions filed in the trial court. Fla. R. Civ. P. 1.140(b) provides that defenses including the defense of lack of personal jurisdiction “may be made by motion at the option of the pleader,” but “must be asserted in the responsive pleading, if one is required.” In the case before the Second District, before filing an answer in which it raised lack of personal jurisdiction as a defense, the defendant had filed two other motions. “In this case, before filing a responsive pleading, VWAG moved under rule 1.140 to quash service of process for failure to timely comply with the Hague Convention, and also moved under 1.070(j) to dismiss for failure to timely serve process.” Id. at **8-9. Holding that the motions to quash service and to dismiss under rule 1.070(j) did not seek affirmative relief that waived a jurisdictional challenge, the court noted that rule 1.140(b) did not make mandatory a motion to dismiss based upon lack of jurisdiction, and that raising it in the defendant’s answer rendered it timely. Timeliness of Medical Malpractice Notice of Intent. In disagreeing with the Second District’s decision in Bove v. Naples HMA, LLC, 196 So.3d 411 (Fla. 2d DCA 2016), which had held that “it is the date that the notice is received – rather than the date that the notice is mailed – that is relevant for purposes of determining whether the statute of limitations has been tolled” by a medical malpractice presuit notice of 36 | July/August 2017 |

intent, the court in Bay Cnty Bd. of Cnty Comm’rs v. Seeley, No. 1D162829; 2017 Fla. App. LEXIS 5667 (Fla. 1st DCA 4-24-2017) dismissed a petition for certiorari filed by the defendant challenging the timeliness of a medical malpractice case in which the notice of intent had been served on the day before the expiration of the statute of limitations, but not received until after the limitations period had expired. Judge Makar’s concurring opinion found as the “most defensible” the Fifth District’s determination in Baxter v. Northrup, 128 So.3d 908 (Fla. 5th DCA 2013), stating that “[t]he timely service of a notice of intent satisfies the requirement of general notice, while a defendant’s receipt of the notice insures that the full 90 days of tolling is available thereafter so that defendants may evaluate plaintiffs’ claim.” Id. at *4. Mandamus to Compel Public Records Productions. Fla. R. Civ. P. 1.630 provides that circuit courts may grant petitions for writ of mandamus to compel compliance with public records requests. However, §119.07(4), Fla. Stat., provides that “[t]he custodian of public records shall furnish a copy for a certified copy of the record upon payment of the fee prescribed by law.” (Emphasis added). In Florida Agency for Healthcare Admin. v. Zuckerman Spaeder, LLP, No. 1D164801; 2017 Fla. App. LEXIS 9660 (Fla. 1st DCA 7-6-2017), the court held that it was error for the trial judge to order a state agency to produce documents requested by a law firm without prepayment of the fee necessary to research the records and redact private information. Proposals for Settlement – Form of Certificate of Service. Fla. R. Civ. P. 1.442(c)(2)(G) states that a proposal for settlement shall include a certificate of service in the form required by Fla. R. Civ. P. 1.080. However, rule 1.080(a), which states that every document filed in the action must be served in conformity with requirements of Fla. R. Jud. Admin. 2.516 (including specific formatting requirements for email service) does not apply to proposals for settlement, because those proposals are not filed in the action. Therefore, in Boatright v. Phillip Morris USA, Inc., No. 2D15-1781; 2017 Fla. App. LEXIS 5018 (Fla. 2d DCA 4-12-2017), the court held that a proposal for settlement need not contain a certificate of service meeting the technical requirements of Rule 2.516. Note that this case certifies conflict with the Third District Court of Appeal’s decision in Wheaton v. Wheaton, 217 So.3d 125 (Fla. 3d DCA 2017). At press time the Boatright case was pending for review before the Supreme Court of Florida. These cases are among many others interpreting the Rules of Civil Procedure decided since our last Journal column in this field. Those of us representing injured plaintiffs have many procedural obstacles thrown in our path to achieve justice, but we hope that our readers do not surrender to the complexities of such rules and that we instead: Keep Tryin’! ROY D. WASSON

is board certified in Appellate Practice with extensive courtroom experience in more than 600 appeals and thousands of trial court cases. He is an EAGLE Patron, a former member of the FJA board of directors, a Fellow of the Academy of Florida Trial Lawyers, a past chairman of the FJA Appellate Practice Section, and a member and past chair of the Amicus Curiae Committee. Roy is a recipient of the FJA Gold EAGLE, Silver EAGLE and Bronze EAGLE awards, the Legislative Leadership Shoe Leather Award, and the S. Victor Tipton Award for Legal Writing. He has served as chair of The Florida Bar Appellate Court Rules Committee, its Appellate Certification Committee, and its Appellate Practice Section.


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Of Orders On Defense Motions to Transfer Venue for Forum Non-Conveniens & Implications for Litigating the Issue In the Trial Court by Adam Richardson


ection 47.122, Florida Statutes, has remained unchanged since it was enacted in 1969. The statute provides: “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” By this statute, therefore, a party may move for “the transfer of venue from one Florida county to another on the basis of forum non conveniens.” Pep Boys v. Montilla, 62 So. 3d 1162, 1165, 1165 (Fla. 4th DCA 2011). The motion to transfer for forum non conveniens is a favored tool of defendants in especially complex and significant personal-injury or wrongful-death actions, where the parties and witnesses may be not be located in just one county. The plaintiff’s lawyer should litigate the motion anticipating an appeal, either by the defendant if the motion is denied, or by the plaintiff if it is granted. Jurisdiction An order on a motion to transfer for forum non conveniens is an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130(a)(3), which states in part: “Appeals to the district courts of appeal of non-final orders are limited to those that (A) concern venue[.]” “This rule enables a party to seek review of an adverse decision on venue before that party is forced to litigate the entire controversy in the wrong forum.” Mgmt. Computer Controls v. Charles Perry Constr., 743 So. 2d 627, 630 (Fla. 1st DCA 1999). The Florida district courts have interpreted the “concern venue” language to mean the rule authorizes “the appeal of orders that fix the locus of the action.” Dep’t of Agric. v. Middleton, 24 So. 3d 624, 626-27 (Fla. 2d DCA 2009) (citing Dep’t of Mgmt. Servs. v. Fastrac Constr., 701 So. 2d 1200, 1201 (Fla. 5th DCA 1997); Paz v. Valencia, 561 So. 2d 1275, 1276 (Fla. 4th DCA 1990); Rosie O’Grady’s Inc. v. Del Portillo, 521 So. 2d 183, 184 (Fla. 3d DCA 1988)).

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A nonfinal order on a motion to transfer on forum non conveniens is such an order. See ABA Capital Markets Corp. v. Provincial De Reaseguros C.A., 101 So. 3d 385 (Fla. 3d DCA 2012). It is important to litigate a defendant’s motion to transfer venue with the understanding that either party will be able to immediately appeal an order on the motion. Standard for §47.122 and the defendant’s burden Before turning to the standard of review on appeal, it is important to address the substantive standard for forum non conveniens and the movant’s burden. The Fourth District articulated and explained the standard in Pep Boys: “[T]here are three statutory factors a court considers in determining whether to grant a motion pursuant to section 47.122: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice.” Ford Motor Co. v. James, 33 So. 3d 91, 92-93 (Fla. 4th DCA 2010). Of the three factors, “[t]he convenience of the witnesses is probably the single most important consideration of the three statutory factors.” Hu v. Crockett, 426 So. 2d 1275, 1279 (Fla. 1st DCA 1983). The plaintiff’s forum selection is no longer the “factor of over-riding importance.” Id. at 1278. The third factor, that of the interests of justice, is a catchall consideration including many considerations, and in some close cases this factor may be determinative. One consideration is the convenience of the attorneys which is usually accorded very little, if any, weight....

Other considerations include but are not limited to the avoidance of a crowded court docket and the imposition of jury duty on an uninvolved community. Id. at 1280 (citations omitted). 62 So.3d at 1165. While the plaintiff ’s forum selection is not the most important factor, it is still presumptively correct. Wynn Drywall Inc. v. Aequicap Program Adm’rs, 953 So.2d 28, 30 (Fla. 4th DCA 2007). To override the plaintiff’s selection, the defendant has the burden to establish that substantial inconvenience requires a change for the convenience of the parties or witnesses. Id. Standard of review The Fourth District cogently explained the standards of review of venue decisions in McDaniel Reserve Realty Holdings v. B.S.E. Consultants: There are at least two different types of venue decisions a trial court may be asked to make, each requiring a different standard of review. When a trial court is presented with a motion to transfer venue based on the impropriety of the plaintiff’s venue selection under section 47.011, the trial court must resolve any relevant factual disputes and then make a legal decision whether the plaintiff’s venue selection is legally supportable. The trial court’s legal conclusions in this regard are reviewed de novo. However, when a party moves to transfer venue for the convenience of the parties [under section 47.122, Florida Statutes], the trial court is faced with more than one legally acceptable venue, and the trial court’s venue decision will not be disturbed absent an abuse of discretion. 39 So. 3d 504, 508 (Fla. 4th DCA 2010) (emphasis added, citations omitted); see also Philip Padovano, Appellate Practice §19:5 n. 12 (2015 ed.) (same). So, when the appeal involves not whether venue is proper, but, of two legally proper venues, which one is more convenient, the standard of review is whether the trial court abused its discretion. The trial court’s factual determinations are reviewed for competent, substantial evidence. See Hu, 426 So. 2d at 1276. This is so even when the trial court “denied the motions without explanation.” Pep Boys, 62 So.3d at 1165 (reviewing order which “denied the motions [to transfer venue on convenience grounds] without explanation” for abuse of discretion). Pep Boys suggests a trial court is not required to make explicit factual findings on these motions. When the trial court makes no specific findings of fact, the appellate court “must ‘accept the facts to be those shown by that evidence most favorable’ to … the prevailing party.” New Nautical Coatings v. Scoggin, 731 So. 2d 145, 146 (Fla. 4th DCA 1999) (quoting S. Bell Tel. & Tel. Co. v. Broward Cnty., 665 So. 2d 272, 274 (Fla. 4th DCA 1995)). If the appeal is by the defendant, it may try to confuse the issue of the appropriate standard of review, especially where there are no findings,

asserting review is de novo. Although the above authorities foreclose that argument, this may seem an attractive tactic to the defendant because of the difficulty in establishing an abuse of discretion. In reviewing the defendant’s initial brief, the plaintiff’s lawyer should pay special attention to the defendant’s articulation of the defendant’s standard of review. If the defendant asserts de novo review, the plaintiff’s lawyer must make a point of the proper standard in his or her answer brief. Of course, the standard will pose an obstacle to the plaintiff if the trial court grants the defendant’s motion. The plaintiff’s lawyer should resist the temptation to avoid the standard. Instead, the plaintiff’s lawyer should take steps in the trial court to support a later appellate argument that the trial court abused its discretion. Litigating the convenience of the witnesses in the trial court and on appeal The convenience of the witnesses is probably the most important factor in the consideration of forum non conveniens. Pep Boys, 62 So. 3d at 1165. It is the defendant’s burden to prove that it would be significantly inconvenient for the witnesses to appear in the plaintiff’s chosen forum. To this end, the parties should submit affidavits or other evidence that will shed necessary light on the issue. Id. Many cases state that the evidence must be sworn, like a deposition or affidavit. See, e.g., Ground Improvement Tech. v. Merchants Bonding Co., 707 So. 2d 1138, 1139 (Fla. 5th DCA 1998); Graham v. Graham, 648 So. 2d 814, 815-16 (Fla. 4th DCA 1995). However, other cases take the broader view that there simply must be record evidence, which includes but is not limited to sworn evidence. See, e.g., R.J. Reynolds Tobacco Co. v. Mooney, 147 So. 3d 42, 45 (Fla. 3d DCA 2014); Wynn Drywall Inc., 953 So. 2d at 30. A critical issue in the factor of convenience of witnesses is the significance of their testimony. “The court must know who the witnesses are and the significance of their testimony in order to consider the convenience of the witnesses.” Wynn Drywall Inc., 953 So. 2d at 30 (citation omitted). The information allows a well-informed balancing test, “since the quality of testimony by a key witness may well outweigh the quantity of testimony by a number of witnesses testifying to relatively unimportant matters.” Hu, 426 So. 2d at 1279. Defendants often fail to take the requirement seriously and, therefore, fail to provide this critical information. The Fourth District’s decision in R.C. Storage One v. Strand Realty, 714 So. 2d 634, 635-36 (Fla. 4th DCA 1998), where the appellate court affirmed the trial court’s denial of a motion, tells us the result of such a failure: The affidavits in support of R.C.’s motion to transfer venue were little more than a laundry list of witnesses, their places of residence[,] and the conclusory statement that it would be inconvenient for them to travel to Palm Beach County. The affidavits failed to disclose any information as to the necessity, relevance[,] or significance of the evidence to be presented by these witnesses. | July/August 2017 | 39


…. While this court might be tempted to look at the complaint and make our own assumptions about what the evidence will be and how important certain witnesses’ testimony will be to the trial of this case, we decline to do so. Indeed, certain listed “witnesses” may have information relevant only to uncontested matters, and it may be unnecessary for them to attend the trial or have any significant involvement in the litigation. Unfortunately, the most effective way to argue this point to an appellate court is tedious. Given page limitations and time constraints at hearings, it might not be practical to take this approach in the trial court. On appeal, the plaintiff’s lawyer should carefully walk the appellate court through all of the evidence the defendant filed in the trial court in order to synthesize that information and establish which specific witnesses (if any) the defendant satisfied its burden with respect to. That is, for which witnesses did the defendant establish the following: that the witness lives in the county it wants the action transferred to, not the county you filed the action in; that it would be significantly inconvenient for that witness to travel to the county you filed the action in; and that the witness’s testimony will actually be significant to the action. The analysis might take pages and pages, but it is worth it if, at the end, you can write a sentence saying the defendant satisfied its burden for only one or two witnesses. In a case involving, say, forty witnesses, being able to write a sentence like that makes it harder for the defendant to credibly maintain the trial court abused its discretion in denying the motion, and it makes it easier for you to argue the trial court did abuse its discretion if it granted the motion. For the purpose of persuading the trial court and, later, of appellate review, the plaintiff’s lawyer should present evidence with respect to his or her own witnesses to balance against the defense evidence. Ideally, the plaintiff’s lawyer should identify: 1) witnesses’ names; 2) their residences; and 3) their role in the case and the nature of their testimony (e.g., in a trucking-accident case, an eyewitness whose testimony will be important to establishing liability; or in a wrongfuldeath case, before-and-after witnesses for the survivor’s damages for mental pain and suffering). Whether or not the plaintiff’s witnesses reside in the plaintiff’s chosen forum, the plaintiff’s lawyer should obtain, if possible, affidavits from his or her witnesses stating they would not be inconvenienced by testifying in the chosen forum. In explaining the evidence to the appellate court, you should tell the court whether the defendant presented incompetent evidence that the trial court properly rejected, or improperly relied on. For example, in a medical-malpractice case involving treatment at a hospital, the defendant hospital may file the affidavit of a hospital employee (perhaps someone in human resources) stating the residences of other employees who may be witnesses. As the First District held in American Baseball Cap v. Duzinski, a trial court may consider affidavits reciting non-record facts in passing upon matters relating to jurisdiction. … However, such affidavits, if they are to be considered by the trial judge, must meet essentially the same requirements as 40 | July/August 2017 |

affidavits relative to determination of motions for summary judgment, viz: They shall be made on personal knowledge, shall set forth only such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Affidavits predicated upon inadmissible hearsay should not be utilized. 308 So.2d 639, 641 (Fla. 1st DCA 1975) (emphasis added, citations omitted); see also Tobinick v. Novella, No. 9:14-CV-80781, 2015 WL 328236, at *2 n.7 (S.D. Fla. 1-23-2015) (when considering motion to transfer for improper venue, district court refused to consider portions of affidavit “that clearly are not based on his personal knowledge”). If, in our example, the hospital employee never explained how he or she acquired the knowledge of the potential witnesses’ residences, you need to tell the appellate court that. Moreover, the significance of expert witnesses to the litigation is important. In one case, the Fourth District affirmed the denial of a motion to transfer venue where liability would turn primarily on expert testimony. See Ford Motor Co., 33 So. 3d at 93-94 (affirming denial of motion to transfer venue where “the determination of liability in the present case will turn primarily on expert testimony,” “[t]he testimony of the public servants who responded to the scene of the accident or the lay people who witnessed the accident is less important[,]” and “Ford and Michelin have not suggested that their experts would be inconvenienced by a trial in Broward County”). If your case will turn primarily on expert testimony, you need to make a record of that in the lower court. Less weight also is given to out-of-state witnesses. See Avis Rent A Car Sys. v. Broughton, 672 So 2d 656 (Fla. 4th DCA 1996) (action should have been removed to county where accident occurred, even though it would have been more convenient for outof-state witnesses to travel to county where action was filed). Conclusion The trial court’s resolution of a motion to transfer for forum non conveniens and the appellate court’s review of that determination depend on the facts and evidence presented in the trial court. The plaintiff’s lawyer should carefully review the defendant’s evidence and also should present to the trial court evidence supporting his or her position. Not only will this help the plaintiff’s lawyer argue to the trial court that it should deny the defendant’s motion, but it will make it easier to persuade an appellate court to affirm. If the trial court grants the motion, however, litigating the issue properly in the trial court will allow the plaintiff to make a reasonable argument that the trial court abused its discretion.


is an associate at Burlington & Rockenbach, P.A., in West Palm Beach. He limits his practice to trial support and appeals in civil cases. Adam received his B.A. from Stetson University in 2005 and his J.D. from Florida State University in 2009. Following graduation from law school, he clerked for Judge Robert M. Gross of the Fourth District Court of Appeal.

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by Heather Freeman Jones he force is strong with the young lawyers! Their Additionally, the Young Lawyers Board held enthusiasm, drive and talent are gaining elections during the Annual Convention resulting in a attention and momentum unlike anything I have seen in my years of full twenty-four-member Board. The members of the Board voiced membership. One of the most telling signs of their force is their impact their excitement to grow the Young Lawyers Section and ensure the on the Florida Justice Association (FJA). During the Presidential experience is valuable. If you have questions or ideas to enhance your Luncheon at the Annual Convention at least five young lawyer members young lawyer member experience please reach out to us! were honored for their contributions to the FJA, including recipients of the Quarter Horse Award, Bronze EAGLE Award, and the Shoe What is next for the Young Lawyers Section? Leather Award. First, our Annual Board Retreat coincided with the Al J. Cone Trial Much of this momentum has grown under the leadership of the Advocacy Institute. Our meeting was held August 2, 2017, at the Board of Directors of the Young Lawyers Section and Past Chairs Gaylord Palms Resort in Orlando with dinner following at Disney’s Jarrett DeLuca, Jason Whittemore, Vanessa Brice, and Jon Gilbert. Epcot German Biergarten restaurant. A good time was had by all! Our Past Chairs have cultivated an environment where young lawyer members understand the value of their skills and how to use them to Next, FJA’s largest outreach event, the Honorable Earl E. Zehmer contribute to the FJA. Memorial Mock Trial Competition is Saturday November 4 through Sunday November 5, 2017, at the Orange County Courthouse in For example, this past March more than ten young lawyers pounded Orlando. Law school student teams of aspiring trial lawyers compete the pavement lobbying in Tallahassee. They met with Representatives while our members serve as the scoring jurors. Serving as a mock trial and Senators on the LIMP bill, bad faith, and a bill imposing civil juror is the most fun CLE you will earn, and it is free! penalties for human trafficking. Young lawyer members also drafted legislation relating to workers’ compensation, mandatory bodily Competition rounds occur on both Saturday and Sunday from 9aminjury coverage, and autonomous vehicles, or “Robot Cars” as they noon and 1pm-4pm with a food and drink reception Saturday evening are affectionately called at the FJA headquarters. And this is just what hosted by Colling Gilbert Wright & Carter. Jurors may sit for one to I witnessed during the designated Young Lawyer Lobby Days. Many all four rounds of competition and may earn up to nine CLE credits. other young lawyer members gave their time and talent during other We also have a hotel room block at the Embassy Suites Downtown weeks of the legislative session. Orlando. During the Annual Convention, the Young Lawyers Seminar CLE featured presenters ranging from lawyers practicing for over forty years in civil trial law, to a physician discussing complex regional pain syndrome (RSD), to our very own young lawyer members. Following the Seminar, the Young Lawyer Mix and Mingle Networking Reception drew over seventy attendees including current members, prospective members and law students thanks to the hard work of the West Florida Young Lawyer Task Force.

42 | July/August 2017 |

For the last two years this event has been held in Orlando with remarkable success, including each round of competition’s Presiding Judge being an actual sitting judge from the greater Orlando area, and we have kept with the tradition of having a federal judge preside over the final round. This event requires the highest numbers of participation from our members because having more jurors present ensures fair scoring and the credibility of our competition. Last year we had sixteen teams participate, over one hundred members attend

and five scoring jurors for the final round. This year we need just as strong participation numbers and so I strongly encourage all young lawyer and regular members to give a few hours this November to the aspiring trial lawyers who will soon be joining our profession and hopefully the FJA. Spring 2018 will be our Young Lawyer Lobby Days. I believe this is the most valuable and unique experience the FJA provides our young lawyers. In Tallahassee our members are briefed on the current bills and issues and trained on the “Dos and Don’ts” of lobbying during lobby strategy meetings. They also draft legislation, participate in House and Senate Committee meetings, and meet with Representatives and Senators on bills and issues. At Lobby Days you directly impact the laws affecting your clients and your practice while witnessing firsthand the value of the FJA’s lobbying team. The FJA uses your knowledge and experience to describe the good and bad consequences of laws to our legislators. And when you return home to your practice you can tell your clients how you not only fight for their rights in your local courthouse but also in the Capitol. Throughout the year various young lawyer membership outreach events will occur. Your local Young Lawyer Task Force needs your help introducing the FJA to potential young lawyer members and showing

how FJA provides value to their practice. Imagine the greater impact we can have for our clients and our profession with increased membership. Also, the Young Lawyers Section has designated articles in the FJA Journal. We need young lawyers to write articles on the law, your areas of practice, and relevant topics for young lawyers and our membership as a whole. An active exchange of knowledge and resources occurs over our Young Lawyers listserv. If you are not already signed up on the listserv please contact Lance Ortiz at Similarly, CLEs are offered during the year specifically geared to young lawyers including PI Bootcamp and the Young Lawyers Seminar during Convention. To balance all of these endeavors, let’s have some fun! Plans for a Ski Seminar and YL Cruise are being put together, and we want your input! Additionally, the Young Lawyers Board has created a Quality of Life Committee. Summary of how to get involved: 1) Hopefully you came to our Retreat August 2, 2017. 2) Sit as a scoring juror for the Mock Trial Competition.

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3) Attend your local outreach events throughout the year. 4) Lobby during the Young Lawyer Lobby Days in Tallahassee. 5) Write an article for the Young Lawyers Section in the FJA Journal. 6) Participate in Young Lawyer CLEs. 7) Network and meet your peers on a Ski Seminar and YL Cruise. 8) Join a Young Lawyers Board committee: YL Task Force, Mock Trial, Quality of Life, Nominating Committee, Project Committee, Seminar Committee, Publication Committee, Ski Seminar, YL Cruise, and Election Committee. 9) Reach out to the Young Lawyers Board and Leadership – we are here to enhance your experience! 10) If you are a regular member please get your young lawyer associates involved. The networking, leadership, and skills opportunities are a priceless investment that will ultimately improve your bottom line. Meet your Young Lawyers Board: Chair: Heather Freeman Jones, Anderson & Anderson, Tampa,

Peter Hunt, LaBovick LaBovick & Diaz, Palm Beach Gardens, Alan Perez, Mallard Law Firm, Sarasota, Alan@MallardLawFirm. com Daniel Vazquez, Fine, Farkash & Parlapiano, P.A., Gainesville, 2017-2018 At-Large Board Directors: Matt Carrillo, Carrillo & Carrillo, Gainesville, mattcarrillo@ Jaeson Homola, Barrett, Fasig & Brooks, Tallahassee, jaeson@ Michael Kalil, Law Offices of John S. Kalil, P.A., Jacksonville,

Chair-Elect: Chris Keller, Lytal, Reiter, Smith, Ivey & Fronrath, West Palm Beach

Ian Kirtman, Gold & Gold, P.A.,Boca Raton, Patrick McArdle, Grossman Roth & Partridge, P.A., Sarasota, psm@

Secretary: Carter Scott, Searcy, Denney, Scarola, Barnhart & Shipley, Tallahassee

Jason McIntosh, Lytal, Reiter, Smith, Ivey & Fronrath, LLP, West Palm Beach,

Immediate Past Chair: Jonathan Gilbert, Colling, Gilbert, Wright & Carter, Orlando

Fay Pappas, Bailey Fisher, PLLC, Winter Park, fay@

2016-2018 Board Directors: Ben Whitman, Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, West Palm Beach, Cassidy Perdue, Colling Gilbert Wright & Carter, Orlando, Elizabeth Munro, Vanguard Attorneys, Tampa, elizabethm@ Michael Brevda, Senior Justice Law Firm, Boca Raton,

Peter Tragos, Law Offices of Tragos, Sartes & Tragos, P.L., Clearwater, Elizete Velado, Goldberg & Noone, LLC, Fort Meyers, Kim Wald, Kelley Uustal, PLC, Fort Lauderdale, The growth of the Young Lawyers Section would not be possible without the hard work and support of the FJA Staff, especially our Young Lawyer Liaison G.C. Murray, Jr., John Brazzell, Gena Matthews, and Kristin Broner.

Ryan Fogg, David J. Halberg, P.A., West Palm Beach, RFogg@ 2017-2019 Board Directors: Heather Barnes, The Yerrid Law Firm, P.A., Tampa, hbarnes@ Amanda Dunn, Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, 44 | July/August 2017 |


Mrs. Jones is an Associate Attorney with Anderson & Anderson practicing in auto, premises and products liability personal injury cases in Tampa, Florida. Mrs. Jones is the Chair of the Board of Directors of FJA’s Young Lawyers Section.


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OFFERS OF JUDGMENT: The Current Minefield by Jed Kurzban, Lauren Gallagher & Elaine Kussurelis A Brief History I. Offer of Judgment Rule lorida first enacted an offer of judgment rule in 1972, when the Florida Supreme Court adopted Fla.R.Civ.P. 1.442 in an effort to encourage settlement and avoid the necessity of trial. Hernandez v. Travelers Ins. Co., 331 So.2d 329, 331 (3d DCA 1976). Rule 1.442 was “the same as” Rule 68 of the Federal Rules of Civil Procedure and was put into effect on January 1, 1973. In re The Florida Bar, 265 So.2d 21 (Fla. 1972). This rule only allowed defendants – and not plaintiffs – to serve an offer of judgment. Id. If the plaintiff failed to obtain a judgment more favorable than the offer, the rule awarded the defendant costs incurred after making the offer. Id. The Civil Procedure Rules Committee believed the Florida rule would not be used often, based on information obtained as to the efficacy of the equivalent Federal Rule 68. Id.


In 1989, the Florida Supreme Court adopted a new Rule 1.442 after the Florida Legislature enacted two offer of judgment statutes ( F.S. §768.79 and §45.061) that caused confusion in part due to their uncertain relationship with Rule 1.442. The Fla. Bar re Amendment to Rules of Civil Procedure, 550 So.2d 442 (Fla. 1989). The Supreme Court sought to resolve this confusion by enacting the new rule, emphasizing, “[t]o the extent the procedural aspects of new rule 1.442 are inconsistent with sections 768.79 and 45.061, the rule shall supersede the statutes.” Id. The new rule imposed a sanction based on costs and attorney’s fees relating to the rejection of the offer to settle. It also strengthened the existing rule by allowing sanctions when the offer was unreasonably refused and the subsequent judgment was disproportionate to the offer by over 25 percent, i.e. an offer of $100,000 by the plaintiff, if not accepted by the defendant, will trigger the attorney’s fees and costs provision if a judgment is obtained of 46 | July/August 2017 |

$125,000 or more. Id. The new rule included extensive language that defined what could constitute an unreasonable refusal and clarified the extent of the trial court’s decision on the question, including but not limited to the merit of the claim subject to the offer; the number, nature, and quality of the offers and counteroffers made; and the closeness of questions of fact and law at issue. Id. In 1992, the Florida Supreme Court repealed Rule 1.442 and adopted the procedure set forth in §768.79. Timmons v. Combs, 608 So.2d 1, 3 (Fla. 1992). The Court simultaneously deleted Rule 1.442 in accordance with Timmons. In re Amendments to the Fla. Rules of Civ. Procedure, 604 So.2d 1110 (Fla. 1992). In 1996, the Florida Supreme Court again amended Rule 1.442, effective January 1, 1997. This amendment changed the name of the settlement procedure from “Offer of Judgment” to “Proposals for Settlement” and provided for conditions to be included in the proposals for settlement. In re Amendments to the Fla. Rules of Civ. Procedure, 682 So.2d 105 (Fla. 1996). In 2001, the court further amended Rule 1.442. This amendment added subdivision (f )(2) to establish the time for acceptance of proposals in class actions, amended subdivision (g) to conform with a proposed new rule regarding motions for attorneys’ fees, and renamed subdivision (b) to better reflect its content. In re Amendments to the Fla. Rules of Civ. Procedure, 773 So.2d 1098 (Fla. 2001). In 2012, subdivision (c)(2)(G) was amended to “reflect the relocation of the service rule from rule 1.080 to Fla. Rule Jud. Admin 2.516.” Rule 1.442. Finally, in 2013, two subdivisions were amended. Subdivision (f )(1) was amended to “reflect the relocation of the rule regulating additional time after service by mail or e-mail from rule 1.090(e) to Fla. Rule Jud. Admin. 2.514(b).” Id. Subdivision (c)(2)(B) was also

amended to clarify that proposals “must resolve all claims between the proponent and the party to whom the proposal is made, except claims for attorneys’ fees, which may or may not be resolved in the proposal.” Id. The requirements established by the foregoing amendments are set forth below. II. Offer of Judgment Statutes The Florida Legislature passed F.S. §768.585 in 1985. This offer of judgment statute allowed a defendant who filed an offer of judgment that was not accepted by the plaintiff to recover reasonable costs and attorney’s fees if the judgment obtained by the plaintiff was at least 25 percent less than the defendant’s offer. F.S. §768.585. However, this statute only applied to medical malpractice claims. Id. In 1986, it was replaced with F.S. §768.79, which applied not only to medical malpractice claims, but to all actions for damages. F.S. §768.79 referred to offers of judgment by the defendant and demands for judgment by the plaintiff. If the plaintiff obtained a judgment that was at least twenty-five percent less than the defendant’s rejected offer, the defendant was allowed to recover the reasonable costs and attorney’s fees it incurred litigating the claim. Timmons, 608 So.2d at 1. The plaintiff could collect costs and attorney’s fees if the plaintiff recovered a judgment over twenty-five percent more than the rejected offer. Id. Thus, because the statute only referred to judgments obtained by the plaintiff, courts precluded the recovery of costs and attorney’s fees by a defendant when the defendant obtained a judgment. Id. The Florida Legislature passed F.S. §45.061 in 1987. This proposal for settlement statute applied to all civil actions unless otherwise provided (i.e. class actions, shareholder derivative suits, and matters relating to dissolution of marriage, alimony, nonsupport, eminent domain, and child custody). F.S. §45.061. It permitted awarding attorney’s fees and costs if the court determined that the offer was unreasonably rejected. Timmons, 608 So.2d at 2. A defendant unreasonably rejected an offer if the judgment was at least twenty-five percent greater than the offer, while the plaintiff unreasonably rejected an offer when the judgment was at least twenty-five percent less than the offer. Id. F.S. §768.79 and §45.061 differed from the procedure set forth in Rule 1.442 in two ways. First, they allowed either a defendant or a plaintiff to make an offer for settlement, while only a defendant could make an offer under Rule 1.442. Second, F.S. §768.79 and §45.061 included attorney’s fees and costs if the offer was rejected, while Rule 1.442 included only costs if the offer was rejected. In 1990, the Florida Legislature repealed F.S. §45.061 and amended F.S. §768.79. The F.S. §768.79 amendment clarified that a defendant could collect under the statute when the offer was rejected by the plaintiff and the judgment was one of no liability. It also deleted the words “[i]n any action to which this part applies,” substituting the words, “[i]n any civil action for damages.” Beyel Bros. Crane & Rigging Co. of S. Fla. v. Ace Transp., 664 So.2d 62 (Fla. 4th DCA 1995). In 1992, when the Florida Supreme Court repealed Rule 1.442, F.S. §768.79 was the only remaining statute on the subject of offers of

judgment, so the Court adopted F.S. §768.79 as the substitute rule of procedure. Timmons, 608 So.2d at 3. III. Case Law Interpreting the Rule and Statutes The many changes made to Florida’s statutes and rules created confusion over which version applied in each specific case. The court in City of Punta Gorda v. Burnt Store Hotel found that “an award of attorney’s fees pursuant to section 768.79 is controlled by the statute in effect when the cause of action accrued, not when the offer was made.” City of Punta Gorda v. Burnt Store Hotel, 650 So.2d 142, 143 (Fla. 2d DCA 1995) (emphasis in original). Conversely, under Rule 1.442, offerees are “entitled to consider the offer under the law in effect at the time the offer was made.” J.J.’s Mae, Inc. v. Milliken & Co., 763 So.2d 1106 (Fla. 4th DCA 1999). Ultimately, these changes mean that F.S. §45.061 will not be used unless the cause of action accrued before October 1, 1990. If the cause of action accrued on or after October 1, 1990, F.S. §768.79 and Rule 1.442 govern. Florida Offers of Judgment, As of 2017 Currently, Offers of Judgment are governed by Rule 1.442 and F.S. §768.79. In a civil action for damages filed in Florida, if the defendant files an offer of judgment that the plaintiff does not accept within 30 days, the defendant is entitled to recover reasonable costs and attorney’s fees if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than the offer. F.S. §768.79. The amount of recoverable costs begins accruing on the date the offer is served. Id; see also Cooper v. Brickell Bayview Real Estate, 711 So.2d 258 (Fla. 3d DCA 1998) (holding that the defendant was entitled to costs and fees from the date the offer was served, rather than the date the offer was filed). If the defendant is entitled to recover, the court should set off costs and attorney’s fees against the award. Id. When the costs and attorney’s fees total more than the judgment, the court enters judgment “for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award.” Id. If the plaintiff files a demand for judgment that the defendant does not accept within 30 days, the plaintiff is entitled to recover reasonable costs and attorney’s fees incurred from the date of filing of the demand if the judgment obtained by the plaintiff is at least 25 percent greater than the offer. Id. With regard to the statutory requirement that the judgment obtained must be 25 percent more or less than the offer, F.S. §768.79(6) provides, “[T]he term ‘judgment obtained’ means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced.” Once the 25 percent prerequisite has been triggered, the only way to deny an offeror an award is if the court determines that the offer was “not made in good faith,” as discussed below. F.S. §768.79(7)(a); Rule 1.442(h)(1). The Offer of Judgment statute applies only to civil actions for damages. Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Prop. Owners Ass’n, 22 So.3d 140 (Fla. 4th DCA 2009). The statute must be strictly | July/August 2017 | 47


construed because it is in derogation of the common law rule that each party is responsible for its own attorney fees. Campbell v. Goldman, 959 So.2d 223 (Fla. 2007). The Florida statute governing offers of judgment is substantive, rather than procedural. It applies only to Florida causes of action, and cannot be a basis for shifting attorney fees on a federal claim. Design Pallets, Inc. v. Gray Robinson, P.A., 583 F. Supp. 2d 1282 (M.D. Fla. 2008). The enforcement of the statute requires a judgment on the merits or a dismissal with prejudice and does not apply when a party files a voluntary dismissal that is without prejudice. Procedure Any proposal for settlement should be made in compliance with the time frames and other provisions of both the applicable statute and the current version of Rule 1.442. If there is a conflict between the requirements of the statutes and the rule, the requirements of the rule should be followed. See Rule 1.442(a). Proposals for Settlement must be served. Rule 1.442(d); F.S. §768.79(3). According to the service rule, Rule 1.080, the offering party must follow the requirements of Rules of Judicial Administration 2.516 in the service of the Offer: 1. 2. 3.

Serve by email Attached PFS to service email in PDF forma Make sure subject line of the service email says (in all caps), “SERVICE OF COURT DOCUMENT,” followed by the case number 4. The body of the service email must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, and the title of each document served with that email, and the name and telephone number of the person required to serve the document. 5. BE CAREFUL: If you are also doing a notice of service of proposal, you need to make sure that you list in your service email the proposal for settlement and the notice of serving proposal as two separate items. If you only serve your opponent with the notice of serving proposal, then you have not actually served the proposal. If you fail to list them as separate items in your service email, then you have failed to comply with Rule 2.516.

A proposal for settlement cannot be “served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.” Rule 1.442(b). There is one exception to the bright-line, 45-day rule. If it appears from the facts of the individual case that the Offer of Judgment is not directed to the current trial period, but instead is intended for a subsequent, unscheduled trial period, then the Offer of Judgment is considered timely. However, in order for this exception to apply, “there must be some evidence in the record that both parties know the case will not be tried during the current trial period and that the Offer of Judgment is made in anticipation of the next, as yet, unscheduled trial period.” Progressive Cas. Ins. Co. v. Radiology & Imaging Ctr., Inc., 761 So.2d 399, 400 (Fla. 3d DCA 2000). The proposal for settlement is “served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the 48 | July/August 2017 |

provisions of this rule.” Rule 1.442(d). F.S. §768.79(3) also provides that an offer “shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section.” Nevertheless, the Florida Supreme Court has held that proposals for settlement filed before the entry of a judgment are enforceable if no objection is made. The offering party should do separate proposals for each individual and serve the proposal according to the rules discussed above. However, the offering party may do a joint proposal, and if they choose to do so, they must apportion the damages. Nevertheless, it is best to not do a joint proposal because the party will have to get 25 percent more than each apportioned offer at trial in order to have the proposal for settlement trigger fee entitlement. Hoang Dinh Duong v. Ziadie, 153 So.3d 354 (Fla. 4th DCA 2014). It is important to note that the requirements in Rule 1.442(d) and §768.79(3) are always changing, so it is best to check these rules when making your proposal for settlement. A proposal for settlement can be withdrawn if made (1) in writing and (2) before written acceptance is delivered. Rule 1.442(e). A proposal for settlement is “deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal.” Rule 1.442(f ). “No oral communications shall constitute an acceptance, rejection, or counteroffer.” Rule 1.442(f ). If an offer of settlement is not withdrawn, the offeree’s counteroffer does not terminate the offeree’s power of acceptance. Scope v. Fannelli, 639 So.2d 141 (Fla. 5th DCA 1994). A proposal for settlement that does not allow a 30-day time period for acceptance of its terms cannot be accepted after an adverse verdict. O’Brien v. Russell, 698 So.2d 642 (Fla. 3d DCA 1997). What to Include in an Offer of Judgment The written offer must identify the applicable Florida law under which it is being made, i.e., F.S. §768.79 and §45.061. Rule 1.442(c)(1). Failure to state in the written proposal that the offer is being made pursuant to a particular statute will render the proposal for settlement unenforceable. The Florida Supreme Court has held that failure to cite the statute in the proposal is not “an insignificant technical violation of the rule.” Campbell v. Goldman, 959 So.2d 223 (Fla. 2007). Thus, both the rule and statute should always be put in the written offer. The Florida Supreme Court “has rejected any deviation from the strict requirements of the statute and rule.” Brower-Eger v. Noon, 994 So.2d 1239 (Fla. 4th DCA 2008). When an offer is made to or from more than one party, it must state the amount attributable to each party. Id. Additionally, a proposal for settlement must be apportioned between multiple offerees, Allstate Indemnity Co. v. Hingson, 808 So.2d 197 (Fla. 2002), as well as among multiple offerors, Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla. 2003); see also Lamb v. Matetzschk, 906 So.2d 1037, 1042 (Fla. 2004) (“Rule 1.442(c)(3) expressly requires that a joint proposal of settlement made to two or more parties be differentiated.”); Audiffred v. Arnold, 161 So.3d 1274 (Fla. 2015) (holding that “when a single offeror submits a settlement proposal to a single offeree pursuant to §768.79 and Rule 1.442, and the offer resolves pending claims by or against additional parties … , it constitutes a joint proposal subject to the apportionment requirement”). However, Rule 1.442(c)(4) now permits joint proposals without apportionment where one party is solely vicariously,

constructively, derivatively, or technically liable. Nevertheless, unless a party is liable under the above exceptions, it is best to make individual proposals as stated previously. An offer of judgment is in the nature of a contract, so the construction of the offer of judgment must be governed solely by the language employed by the parties if it is unambiguous. BMW of North America, Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985). Therefore, an offer “must state with particularity any relevant conditions and all nonmonetary terms.” Palm Beach Polo Holdings, Inc. v. Cill. Of Wellington, 904 So.2d 652, 654 (Fla. 4th DCA 2006). A request for a release is a condition or non-monetary term that must be described with particularity in a proposal for settlement. State Farm Mutual Automobile Insurance Co. v. Nichols, 932 So.2d 1067 (Fla. 2006). The rule does not demand the impossible with its particularity requirement—it only requires that the offer be clear enough to allow the offeree to make “an informed decision without needing clarification.” Id. A rejected offer of judgment that does not state all non-monetary conditions cannot form the basis for a later award of attorney’s fees to the offeror. Menard v. Univ. Radiation Oncology Assocs., LLP, 976 So.2d 69 (Fla. 4th DCA 2008). The issue of whether a proposal for settlement that offers to settle less than all monetary claims between the offeror and offeree is enforceable has not yet been settled. The Fourth DCA has held that an offer made on two of four counts in a counterclaim was not enforceable. Bayley Products, Inc. v. Cole, 720 So.2d 550 (Fla. 4th DCA 1998), In reaching its decision, the court held that F.S. §768.79 “does not authorize offers which, if accepted, would resolve less than all monetary claims.” Id. However, a growing number of appellate decisions have held that an offer for settlement does not need to resolve all claims between the offeror and offeree. Harris Specialty Chemicals, Inc. v. Punto Azul S.A. de C.V., 12 So.3d 809, 810 (Fla. 3d DCA 2009) (“Section 768.79 and Rule 1.442 do not require that a settlement proposal cover all claims between all parties involved, or that it settle all claims between the parties to the proposal.”); Wagner v. Brandeberry, 761 So.2d 443, 447 (Fla. 2d DCA 2000) (“Nothing in either the statute or the rule requires that a proposal settle all claims between all parties, or even all claims between the parties to the proposal.”). Two recent Florida Supreme Court decisions indicate that enforcing proposals for settlement may become easier. In Kuhajda v. Borden Dairy Co. of Alabama, LLC, the court held that a procedural provision of Rule 1.442 that is not also present in F. S. §768.79 does not need to be strictly enforced. Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So.3d 391 (Fla. 2016). Further, the Florida Supreme Court in Anderson v. Hilton Hotels Corp. discouraged courts from “nit-picking” proposals for settlement to search for ambiguity. Anderson v. Hilton Hotels Corp., 202 So.3d 846 (Fla. 2016). A proposal for settlement under the statute and rule must be “sufficiently clear and free of ambiguity to allow the offeree the opportunity to fully consider the proposal.” Id. However, the court does not require “the elimination of every ambiguity—only reasonable ambiguities.” Id. The court emphasized that the rule merely requires the proposal to be “sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Id. Thus, if the proposal contains an ambiguity that could reasonably affect


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THEBRIEFCASE the offeree’s decision, it will not satisfy the particularity requirement. Id. In subsequent cases, the Second and Fourth District Courts of Appeal held that proposals for settlement were valid by not nit-picking the proposals to search for ambiguity. Carey-All., Inc. v. Newby, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008); Kiefer v. Sunset Beach Invs. LLC, 207 So.3d 1008 (Fla. 4th DCA 2017). Offers Made in Bad Faith1 The court may disallow an award of costs and attorney’s fees if it determines that the offer was not made in good faith. F.S. §768.79(7) (a). The offeree has the burden to prove the absence of good faith. Donohoe v. Starmed Staffing, Inc., 743 So.2d 623, 624 (Fla. 2d DCA 1999). This good faith obligation merely requires that the offeror have “some reasonable foundation on which to base an offer.” Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993); see also General Mech. Corp. v. Williams, 103 So.3d 974 (Fla 1st DCA 2012) (finding that the good faith requirement is met as long as the offeror has a basis in known or reasonably believed fact justifying the offer). The fact that the amount offered in a proposal for settlement is nominal does not determine the issue of good faith. Downs v. Coastal Systems International, Inc., 972 So.2d 258 (Fla. 3d DCA 2008) (“Even nominal offers may be made in good faith.”). The court in Schmidt noted that just because an offeror believes that the offeree will not accept the figure does not necessarily suggest an absence of good faith. The offer meets the good faith requirement when it is clear that the offeror intends to settle the case if the offer is accepted, and the amount of the offer is not so widely inconsistent with the facts of the case that it suggests that the only reason for making the offer was to create a right to fees if the offer was not accepted. Schmidt, 629 So.2d 1036 n.5. As long as the evidence demonstrates that at the time the offer was made, the offeror had a reasonable basis to conclude that its exposure to liability was nominal, a minimum settlement offer can be found to have been made in good faith. State Farm Mut. Auto. Ins. Co. v. Sharkey, 928 So.2d 1263 (Fla. 4th DCA 2006). Each district court of appeal has held that the fact that a proposal for settlement was made offering a nominal figure does not alone determine the issue of good faith. The First DCA has acknowledged the “widely accepted view that even a nominal offer may have been made in good faith.” City of Neptune Beach v. Smith., 740 So.2d 25 (Fla. 1st DCA 1999). In State Farm Mut. Auto. Ins. Co. v. Marko, the Second DCA found that an offer of $1 was made in good faith because the offeror based its offer on an evaluation of the offeree’s case. State Farm Mut. Auto. Ins. Co. v. Marko, 695 So.2d 874 (Fla. 2d DCA 1997). The Third DCA has found that an offer of $2,500 was not made in bad faith, even though the case later settled for $3.5 million. Peoples Gas Sys. v. Acme Gas Corp., 689 So.2d 292 (Fla. 3d DCA 1997). In Allstate Ins. v. Sillow, the Fourth DCA found that a proposal for settlement of $100 was made in good faith because a reasonable foundation for making the offer existed. Allstate Ins. v. Sillow, 714 So.2d 647 (Fla. 4th DCA 1998). The Fifth DCA has also ruled on this issue. In Weesner v. United Servs. Auto. Ass’n, the court found that “a nominal offer is not necessarily determinative of the issue of good faith.” Weesner v. United Servs. Auto. Ass’n, 711 So.2d 1192, 1194 (Fla. 5th DCA 1998). Conclusion Offers of judgment were intended to benefit both plaintiffs and 50 | July/August 2017 |

defendants alike by encouraging settlement and avoiding trial. However, in practice, they largely favor defendants.2 Courts generally do not “nitpick” the validity of defendants’ proposals for settlement to search for ambiguities. Thus, they award defendants attorney’s fees despite ambiguities in defendants’ proposals.3 But, in many cases, courts search for ambiguities within plaintiffs’ proposals. Further, courts have repeatedly found that defendants’ offers are made in good faith, despite the nominal amounts offered. Ultimately, this means that a defendant can offer to settle a case for a very small number (say, $1)4, and if the plaintiff does not win at trial, the defendant can collect attorney’s fees and costs from the plaintiff. This encourages defendants to offer a nominal amount, which would not even cover the cost of a court filing. Defendants lose nothing by offering a nominal settlement figure, but potentially gain attorney’s fees and costs after trial. Plaintiffs are not afforded this same luxury. Offering to settle the case for a nominal figure does not benefit the plaintiff. Although offers of judgment benefit defendants more often than plaintiffs, they are nevertheless a useful tool when done correctly by offering parties a tool to induce settlement, thus preventing the necessity of trial. __________ The Florida Supreme Court has not yet ruled on this subject. However, the District Courts of Appeal have decided this issue to the benefit of defendants, finding nominal offers to be made in good faith, thus awarding defendants attorney’s fees. See State Farm Mut. Auto. Ins. Co. v. Marko, 695 So.2d 874 (Fla. 2d DCA 1997) (holding that the defendant’s offer of $1 was made in good faith and awarding attorney’s fees to the defendant because the defendant offeror based its nominal offer on an evaluation of the plaintiff offeree’s case). 2 Audiffred v. Arnold, 161 So.3d 1274 (Fla. 2015); Campbell v. Goldman, 959 So.2d 223, (Fla. 2007); Lamb v. Matetzschk, 906 So.2d 1037, 1042 (Fla. 2004); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla. 2003); MGR Equipment Corp., Inc. v. Wilson Ice Enterprises, Inc., 731 So.2d 1262 (Fla. 1999); R.J. Reynolds Tobacco v. Ward, 141 So.3d 236 (Fla. 1st DCA 2014); General Mech. Corp. v. Williams, 103 So.3d 974 (Fla. 1st DCA 2012); Gonzalez v. Claywell, 82 So.3d 1000 (Fla. 1st DCA 2011); Jacksonville Golfair, Inc. v. Grover, 988 So.2d 1225 (Fla. 1st DCA 2008); Jefferson v. City of Lake City, 965 So.2d 174 (Fla. 1st DCA 2007); City of Neptune Beach v. Smith., 740 So.2d 25 (Fla. 1st DCA 1999); Miley v. Nash, 171 So.3d 145 (Fla. 2d DCA 2015); Carey-All., Inc. v. Newby, 989 So.2d 1201 (Fla. 2d DCA 2008); Anderson v. King, 817 So.2d 1102 (Fla. 2d DCA 2002); Allstate Ins. Co. v. Materiale, 787 So.2d 173 (Fla. 2d DCA 2001); Danner Const. Co., Inc. v. Reynolds Metals Co., 760 So.2d 199 (Fla. 2d DCA 2000); State Farm Mut. Auto. Ins. Co. v. Marko, 695 So.2d 874 (Fla. 2d DCA 1997); Harris Specialty Chemicals, Inc. v. Punto Azul S.A. de C.V., 12 So.3d 809 (Fla. 3d DCA 2009); Downs v. Coastal Systems Intern., Inc., 972 So.2d 258 (Fla. 3d DCA 2008); Oasis v. Espinoza, 954 So.2d 632 (Fla. 3d DCA 2007); Kee v. Baptist Hosp. of Miami, Inc., 971 So.2d 814 (Fla. 3d DCA 2007); Miami-Dade v. Ferrer, 943 So.2d 288 (Fla. 3d DCA 2006); U.S. Alliance Corp. v. Tobon, 715 So.2d 1122 (Fla. 3d DCA 1998); Peoples Gas Sys. V. Acme Gas Corp., 689 So.2d 292 (Fla. 3d DCA 1997); Costco Wholesale Corp. v. Llanio-Gonzalez, 2017 Fla. App. LEXIS 3779 (Fla. 4th DCA 2017); Kiefer v. Sunset Beach Invs. LLC, 207 So.3d 1008 (Fla. 4th DCA 2017); Am. Home Assur. Co. v. D’Agostino, 211 So.3d 63 (Fla. 4th DCA 2017); Gov’t Emples. Ins. Co. v. Ryan, 165 So.3d 674 (Fla. 4th DCA 2015); Alamo Fin., L.P. 1

v. Mazoff, 112 So.3d 626 (Fla. 4th DCA 2013); Lyons v. Chamoun, 96 So.3d 456 (Fla. 4th DCA 2012); Land & Sea Petroleum v. Business Specialists, 53 So.3d 348 (Fla. 4th DCA 2011); Saenz v. Campos, 967 So.2d 1114 (Fla. 4th DCA 2007); Papouras v. BellSouth Telecomms., Inc., 940 So.2d 479 (Fla. 4th DCA 2006); State Farm Mut. Auto. Ins. V. Sharkey, 928 So.2d 1263 (Fla. 4th DCA 2006); McElroy v. Whittington, 867 So.2d 1241 (Fla. 4th DCA 2004); Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003); Allstate Ins. v. Sillow, 714 So.2d 647 (Fla. 4th DCA 1998); Nunez v. Allen, 194 So.3d 554 (Fla. 5th DCA 2016); Mathis v. Cook, 140 So.3d 654 (Fla. 5th DCA 2014); Gurney v. State Farm. Mut. Auto. Ins. Co., 889 So.2d 97 (Fla. 5th DCA 2004); Weesner v. United Servs. Auto. Ass’n, 711 So.2d 1192, 1194 (Fla. 5th DCA 1998). 3 Miley v. Nash, 171 So.3d 145 (Fla. 2d DCA 2015); Carey-All., Inc. v. Newby, 989 So.2d 1201 (Fla. 2d DCA 2008); Kiefer v. Sunset Beach Invs. LLC, 207 So.3d 1008 (Fla. 4th DCA 2017); Am. Home Assur. Co. v. D’Agostino, 211 So.3d 63 (Fla. 4th DCA 2017); Alamo Fin., L.P. v. Mazoff, 112 So.3d 626 (Fla. 4th DCA 2013); Land & Sea Petroleum v. Business Specialists, 53 So.3d 348 (Fla. 4th DCA 2011). 4 State Farm Mut. Auto. Ins. Co. v. Marko, 695 So.2d 874 (Fla. 2d DCA 1997) (holding that the defendant’s offer of $1 was made in good faith and awarding attorney’s fees to the defendant because the defendant offeror based its nominal offer on an evaluation of the plaintiff offeree’s case).



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OCTOBER LAUREN GALLAGHER is an associate at Kurzban Kurzban Weinger Tetzeli and Pratt, P.A., in Miami. She obtained her J.D. from the University of Miami School of Law and practices in the areas of Medical Malpractice and Personal Injury.

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10/19 Proposals for Settlement Webinar


formerly worked as a law clerk for Kurzban Kurzban Weinger Tetzeli and Pratt, P.A. in Miami. She is expected to obtain her J.D. from the University of Miami School of Law in 2018.


11/17 Trucking Webinar

11/30 NEW: Learn from the Legends Seminar | July/August 2017 | 51

THEBRIEFCASE second-Amendment defending gun-rights lobbyist, corrupt members of the Chicago Police Department, a CEO of a well-connected weapons manufacturer selling a defective and deadly product, a millennial hitman with NSA-level surveillance skills and a destructive weakness, and a miscalculating U.S. Department of Justice. In his writing, Papantonio provides sharp political insight and incredible character development.The players come alive in this page-turner. Papantonio has said that “Deke” is a composite character of trial attorneys he has known. As a senior partner of Levin Papantonio, one of the largest plaintiffs’ law firms in the country, Papantonio is a veteran litigator who has worked thousands of mass tort cases including pharmaceutical drug litigation, tobacco litigation, and securities fraud actions. It’s easy to believe that in his professional life, the author may have come across characters like those featured in the pages of Law and Vengeance.


Assassination and Spy Craft, Papantonio’s Law and Vengeance Has It All

As in many remarkable stories, as Gina Romano works to overcome childhood trauma, the greatest enemy she faces is the one she sees in the mirror. After narrowly escaping death in the hack-fueled attack on her mentor, Romano goes through a rebirth of sorts. In reading this enjoyable novel, it’s important to remember this passage from John Dryden, quoted in the book:

Murder may pass unpunished for a time, But tardy justice will o’ertake the crime.

This is the central theme. In this story, justice delayed is still justice delivered.

by Paul Jess, FJA Interim Executive Director


mélange of many of America’s most-pressing issues come alive in Law and Vengeance, the new Grishamesque thriller from author, radio talk show host and legendary attorney Mike Papantonio. In the brilliant set up, the author tells the story of a state-of-the-art gunsight targeting technology developed by a major weapons manufacturer and used by police in Chicago and the U.S. military. In controlled conditions, it’s a breakthrough technology. But in the field, the technology malfunctions. When that happens in the business of using a gun, people often die. That’s bad if your business is based on ensuring people shoot straight. The hero of the story is Gina Romano, a highly-successful trial attorney and self-described “Jersey Girl.” With her boss Nick “Deke” Deketomis – described as more Judge Roy Bean than Justice Ruth Bader Ginsberg – Romano seeks justice for the murder of her mentor. For fans of Papantonio, both characters were introduced in his 2016 book, Law and Disorder. Law and Vengeance also features a crooked 52 | July/August 2017 |

Romano’s surprising approach to a series of explosive depositions “burns down the house,” opening the door to examining the weapons company CEO. This breaks the case wide open. Like the 10th plague of the Passover story from Exodus, one by one, overdue justice quickly arrives for the bad actors in the case. On some fishing expeditions, the big one gets away only to be caught another day. A primary target is shifty to the finish. In the end, the main characters stand at a moral and ethical crossroads. Making the wrong choice could unleash a cancer that could eventually bring ruin to their successful firm. Papantonio accents the fictional world he paints with real world knowledge of how politics works. This entertaining and educational novel provides a spotlight on the growing cancer of corporate corruption and provides readers with an important understanding of the complex issues top trial attorneys tackle every day in their work. With this book, Papantonio has brought the reader colorful characters who could easily become compelling subjects of a suspense-filled Netflix series. Until then, grab a copy of Law and Vengeance and settle down for an entertaining, educating and enlightening read.


SPONSOR - $3,000

2017-2018 EAGLE RECRUITING CHAMPIONS Since May 10, 2017 Recruiter Name

Recruiting Value

Lake H. Lytal, III Dale M. Swope Curry G. Pajcic Matthew K. Foster Richard E. Chait Thomas W. Carey Hendrik Uiterwyk Fermin Lopez Hubert R. Brown Cassidy Perdue H. L. (Larry) Perry Vanessa Brice James W. Gustafson, Jr. Paul M. Anderson James Lawrence Magazine Jonathan T. Gilbert

$41,250 $40,000 $29,500 $26,000 $14,000 $12,000 $10,000 $9,500 $9,000 $9,000 $7,000 $6,000 $6,000 $5,000 $5,000 $4,500

# of Recruits 2 1 10 7 6 8 2 4 3 6 3 2 2 1 1 3

Recruiter Name

Recruiting Value

James W. Guarnieri, Jr. Gregory M. Yaffa Peter Hunt Nathan P. Carter Sean C. Domnick Tiffany M. Faddis Vivian H. Fazio Christopher Ligori Todd Jordan Michaels Waylon Thompson Philip A. Gold Celene Humphries Skip Pita Kimberly J. Syfrett James G. Vickaryous David J. Zappitell

# of Recruits

$4,500 $3,750 $3,250 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $2,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500

3 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 as of 8/23/17

Recruiter Name FOUNDER - $25,000

Hendrik Uiterwyk Upgraded

54 | July/August 2017 |

Recruiting Value

# of Recruits - $10,000 BENEFACTOR

J. Clancey Bounds Upgraded

H.L. (Larry) Perry Upgraded

THANK YOU EAGLEs In recognition for unwavering commitment to the EAGLE program, we recognize the following upgraded, new or returning EAGLE members. PATRON - $5,000

Michael A. Alvarez Upgraded by Lake H. Lytal, III

Heriberto R. Borroto Upgraded by Lake H. Lytal, III

Lisa Cabrera Upgraded by Robert Mayer Rubenstein

Peter F. Catania Recruited by Hendrik Uiterwyk

Richard E. Chait Upgraded by Brian O. Sutter

Christopher Chestnut Recruited by Hubert R. Brown

Andrew L. Ellenberg Upgraded by Michael S. Davis

Phillip E. Holden Upgraded by Lake H. Lytal, III

Nicholas I. Reyes Recruited by Lake H. Lytal, III

Michael J. Trentalange Recruited by Hendrik Uiterwyk

SPONSOR - $3,000 Michael V. Barszcz Recruited by Nathan P. Carter Michelle N. DeLong Recruited by Gregory M. Yaffa Jason Fagnano Recruited by Sean C. Domnick

Frank F. Fernandez, III Recruited by James W. Gustafson, Jr. Jennifer Gentry Fernandez Recruited by James W. Gustafson, Jr.

Michael K. Grife Upgraded

Anita C. Pryor Recruited by Curry G. Pajcic

M. Nicole Kruegel Upgraded by Fred A. Cunningham

Sorraya M. Solages-Jones Recruited by Lake H. Lytal, III

Allison McMillen Upgraded by Scott R. McMillen

Robert C. Solomon Recruited by Todd Jordan Michaels

ASSOCIATE - $2,000 Jeremiah E. Jaspon Upgraded by Tiffany M. Faddis

ASSOCIATE - $1,500 Brian Connors Recruited by H.L. (Larry) Perry

Carlos J. Jimenez Recruited by David J. Zappitell

Shannon P. Liatsos Recruited by James G. Vickaryous

Andrea Pleimling Smith Recruited by Thomas W. Carey

William R. Daniel Recruited by Thomas W. Carey

Ian M. Kirtman Recruited by Philip A. Gold

Spencer G. Morgan Recruited by Skip Pita

Christopher Joseph Smith Recruited by Thomas W. Carey

Ryan T. Hughes Recruited by James W. Guarnieri, Jr.

Alan J. Landerman Recruited by Cassidy Perdue

William Ourand Recruited by Jonathan T. Gilbert



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DRAFTING A CIVIL REMEDY NOTICE FOR UM & PROPERTY CASES WEBINAR $59, $49 for Young Lawyers $39 Paralegals 1.5 Hours of General CLE, 1.5 Hours of Civil Trial Certification PROPOSALS FOR SETTLEMENT WEBINAR


$199; $129 Young Lawyers; $99 Paralegals 3.5 Hours of General CLE; 0.5 Hour of Ethics; 3.5 Hours of Civil Trial Certification

$19; Series (10): $119 (Complete Topic Listing on FJA Website) Each one: 1.0 Hour of General CLE; 1.0 Hour of Civil Trial Certification



$285 Members; $485 Non-Members 5.0 Hours of General CLE; 1.0 Hour of Ethics; 5.0 Hours of Civil Trial Certification

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YOUNG LAWYERS ASSEMBLE AT SUNSET The FJA Young Lawyer Task Force hosted an elegant networking reception at the trendy rooftop bar at sunset during the FJA Annual Convention in St. Pete. 1 – Kristin Broner, Heather Jones, Nicola Larmond-Harvey 2 – Alan Perez, Chris Keller, Ben Whitman 3 – Jaeson Homola and Elizabeth Munro





The FJA Women’s Caucus had an engaging and productive retreat with Lelia Gowland, a consultant on workplace dynamics for women. This FJA membership section is working to increase engagement among female members of the FJA and advocate on relevant issues.



1 - There was an incredible turnout of female FJA members at the Women’s Caucus Retreat. 2 - Lelia Gowland facilitated an engaging and empowering discussion on negotiation skills for female attorneys. | July/August 2017 | 57


YOUNG LAWYERS DEVELOP NEW CLE PROGRAMS The FJA Young Lawyers Section (YLS) is continuing to grow strong! The new 2017-2018 Chair Heather Jones, and the YLS Board met in Orlando for their annual Young Lawyer Board Retreat. At the Retreat, the Board continued its progress on existing 1 projects such as the Mock Trial Competition, Young Lawyer Lobby Days, and the Young Lawyer Task Force. The Board is also developing new Young Lawyer focused CLE events such as the Sea & Ski seminars. We encourage all new lawyers to participate in the amazing updates the Young Lawyers Section offers.


1- FJA Executive Director Paul Jess and President Dale Swope speak to the Young Lawyers Section Board Retreat 2 - The FJA Young Lawyers Section Board of Directors members and staff enjoyed dinner at Epcot after the retreat.


FJA members with family and friends gathered for a productive Member Leadership Retreat from July 9-12 at the beautiful Big Sky Resort in Montana. President Dale Swope led the conversation with members and leaders working together to dial in on strategic goals for the upcoming year and into the future.






1 – FJA members and their families enjoyed beautiful views at the 320 Guest Ranch in Montana 2 – Retreat participants developed important teamwork skills as they braced class 3 and 4 rapids. 3 – Ready for adventure! Paddles raised, the FJA team is ready to board their rafts on the Gallatin River. 4 – FJA President Dale Swope presents to the group of FJA members 5 – FJA members sang loud and proud to their favorite songs at an evening reception. 6 – Steve Jaffe (middle) proudly displays his membership certificate he received 30 years ago when he first joined FJA as a member. Pictured with Chris Searcy (left) and John Romano (right). 7 – (L-R) Waylon Thompson, Nate Carter, Ken McKenna, Jonathan Ducote 8 – FJA Interim Executive Director Paul Jess delivers an update on FJA membership

58 | July/August 2017 |




The discussions at retreat centered around the following topics: · Increasing membership · Discounts, incentives & recruiting recognition · Improving member benefits · Our future – engaging law school students · Using advanced data technologies to enhance membership recruitment · Changing the fundraising model and developing new funding sources Many of the ideas brought forth at the retreat are already “under construction” and all members will see beneficial changes in the months and years ahead. As with most FJA activities, hard work is always rewarded with good food and fun! Thirty-eight members, their families and guests enjoyed many of the activities that Montana offers. Hiking, zip-lining and side trips to Yellowstone National Park were all big attractions! The group enjoyed a whitewater rafting trip and a raucous dinner event next to the Gallatin River. Thank you to our sponsors of the retreat. FJA sincerely thanks the following businesses for their support of FJA year round. All of these businesses give their money and expertise to the FJA and we should reward their loyalty and use their services in our practices.

CLIENT LEGAL FUNDING Tom and Janette Carey FJA Business EAGLE


John McLendon FJA Business EAGLE

BiFulco Medical Group Dr. Santo Steven BiFulco

We encourage all FJA members to join us on these summer retreats. The FJA staff and President encourage members to learn more about our association operations; family and friends enjoy and remember these events as well. Our members who attend often remark that they have made great friends and have enjoyed great times because they participated.

WE’RE VERY SOCIAL! Keep in touch and

up-to-date with all of our latest news, events and campaigns. @florida_justice

And if you enjoy the regular and relevant updates on our responses to policies and legislation, information on our work, events and more. we welcome you to offer your comments, questions and thoughtful ideas into the conversation. Engage with us today on Facebook, Instagram and Twitter!







1 - Swearing in Welcome new officers! President Dale Swope; President-Elect Lake H. (Trey) Lytal, III ; Treasurer Leslie Kroeger; Secretary Eric Romano 2 - President Jimmy Gustafson enjoyed his President’s Video Rogue Justice 3 - Julie Kane delivered an incredible keynote on the state of the civil justice system. 4 - Interim Executive Director Paul Jess speaks to the membership at the Annual Dinner

$3,100 RAISED FOR THE FJA RESEARCH & EDUCATION FOUNDATION For the second year, Dr. Barry Burak of Affiliated Healthcare Centers, Inc has graciously donated an original signed piece of artwork by world-renowned surrealist artist, Salvador Dalí. The piece, titled Off to Battle, is one of the last in a suite produced by Dalí: Historia de Don Quijote de la Mancha. Congratulations to John Mills who won the auction with the highest bid!

60 | July/August 2017 |

OUTSTANDING ATTORNEYS RECOGNIZED 1 – Mickey Smiley Award: Jon Gilbert presents the Award to Senator Gary Farmer


2 – Cornerstone Award recipients: From Left to Right, Laurie Briggs, Leslie Kroeger, Tiffany Faddis and Interim FJA Executive Director Paul Jess 3 – Shoe Leather Award recipients: From Left to Right, Lee Jacobson, Bill Cotterall, Richard Chait, Jason Lamoureux, Chris Smith, Jimmy Gustafson, Matt Carrillo, This award, presented by President Jimmy Gustafson, honors those members who sacrificed an incredible amount on behalf of their practices to protect the rights of Florida’s citizens during the legislative session. These individuals give their all, day in and day out, to combat detrimental legislation and battle on behalf of FJA throughout the hallways of the Capitol.


4 – Quarter Horse Award Recipients: Brent Steinberg, Will Ourand, and Matt Foster (on behalf of Nicole Whitaker) This award, presented by President Jimmy Gustafson, recognizes individuals who were instrumental in progressing legislation during the intense 60-day “sprint” of the legislative session. 5 – President’s Award Recipient: Robert L. Paulk, III This award, presented by the outgoing FJA President, recognizes an individual who has supported and assisted the President tremendously during his term. Rob Paulk has served the FJA as a member of our staff for over 25 years and has made a significant impact on this organization as our Director of Fund Development. We are so proud for Rob to receive this welldeserved recognition!



5 | July/August 2017 | 61


OUTSTANDING ATTORNEYS RECOGNIZED 1 – Centurion Award Recipient: Fred Cunningham The Centurion level of giving is comprised of an elite group of members who have contributed a quarter of a million dollars or more to the FJA during their participation in EAGLE. The Centurion was a leader who was disciplined, well-trained and valiant, who led the legionnaires into battle. They lead from the front and inspire their troops by example. The Florida Justice Association recognizes and honors its own Centurion for their leadership and sacrifice for a great cause. Also Pictured, Past-President Chris Searcy


2 – EAGLE Recruiting Champion Recipient: Ricardo Martinez-Cid This award recognizes the efforts of one individual who enables the growth of the FJA EAGLE program through tireless recruitment of new contributors to the FJA, and encourages new leadership into our organization. Each year, Trevor Goring of the Trial Lawyer National Portrait Gallery provides a limited edition print on canvas to the recipient. This year’s print is titled “The Holdout Juror”, and depicts a lone holdout juror in a room of others pushing for a quick guilty verdict.


3 – EAGLE Legends Recipients: From Left to Right, Robert Paulk, III, Virginia M. Buchanan, and Lake “Trey” Lytal, III. Becoming an EAGLE Legend means that you have given $100,000 or more over a lifetime to the Florida Justice Association. It demonstrates a great degree of commitment to the organization and the preservation of the civil justice system. EAGLEs at this level have emerged as true legacies in their craft.



A POWERFUL WAY TO CONNECT The Trial Lawyers Email List (TLEL) provides access to the ideas, experience and wisdom of hundreds of fellow civil justice attorneys inlcuding some of the FJA’s most experienced practitiners and appellate litigators. For more information on TLEL and how to apply for participation, go online at and click on the member benefits tab, or call (850) 521-1093


SPECIAL THANK YOU TO ANNUAL CONVENTION EXHIBITORS As you know, Business Friends of EAGLEs are companies that do business with FJA members and make the choice to pay more to help support our mission. They work closely with us and repeatedly support our many activities. They have demonstrated time and again they will stand with the FJA in our battles to protect Florida’s Civil Justice System. And, because they are aware of the threats we face, they have stepped forward and given extra to support FJA advocacy through EAGLE. Please join us in thanking them for their support.

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Affiliated Healthcare Centers, Inc. Millennium Settlement Consulting Synergy Settlement Services

EAGLE Business Advocate Robson Forensic, Inc. Universal Court Reporting

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EAGLE Business Patron

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Client Legal Funding Ethan Todd Clothiers Forensic Human Factors, LLC Garretson Resolution Group Global Engineering & Scientific Solutions, LLC High Impact, Inc. Medical Bill Clinic Soan Chau & Associates, LLC Surgery Partners Trial Lawyer National Portrait Gallery Video Law Services, Inc.

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Abigail Stanley RN & Associates LLC Barry Grant, CPA PC Cherokee Funding Filevine FND Trust Services HMR Funding Hospital Experts Krug Consulting Law Cash LexisNexis Li Ma, M.D. Ph. D. Physician Specialists Liquor Law Center Medical Visions, Inc. OrthoClick LLC. Red Pepper Group Riebeck & David Integrated Marketing and Advertising Specialty Allocations Vocational Economics, Inc *EAGLE Business Level as of Annual Convention

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FOR MORE INFORMATION on advertising opportunities available through the FJA or to get details on specifications, ad dimensions, policies and insertion orders, please email John Brazzell jbrazzell@floridajusticeassociation or call (850)224-9403



FJA Into D Members O ivers ity W ffer Pers o ithin the P nal Insig ht ractic e of L aw

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Index Arbitration, nursing homes, fee provision which conflicted with §415.111 was unenforceable but severable…13 Attorneys fees, §57.105, 2nd DCA holds service of “safe harbor” letter need not comply with the filing requirements of Fla.R.Jud.Admin. 2.516(b)(1)...15 fees, §57.105, 4th DCA holds service of “safe harbor” letter must comply with filing requirements of Fla.R.Jud.Admin. 2.516…15 fees, offer of judgment, definition of nominal offer…14 fees, offers of judgment, discussion of rule, statutory and case law history and current requirements...46 fees, proposal for settlement, certificate of service conforming to Rule 2.516 not required, conflict certified...36 fees, proposal for settlement, no failure to strictly comply with rule where proposal was silent as to punitive damages when punitive damages were not sought… 12 fees, proposal for settlement, particularity requirement met by conditioning proposal on execution of joint stipulation for dismissal…16 fees, proposal for settlement, unenforceable where language of release much broader than limited proposal of settlement…16 Auto dangerous instrumentality doctrine, Fla. law applies to out-of-state crash involving two Fla. Residents...21 loaned vehicle, limitation on vicarious liability cap not triggered just because owner and user were engaged in a joint undertaking ...21 Book Review, Paul Jess reviews Mike Papantonio’s new book: Law and Vengence Consumer Law FDUTPA, an individual’s FDUTPA claims do not constitute a “private attorney general action”…14 FDUTPA, no claim against successor company for misrepresentations made by predecessor company…13 Damages compromised verdict, new trial required where liability hotly disputed and damages clearly inadequate…12 punitive, requirements for use of jury instruction prohibiting a financially destructive award…13, 21 punitive, statutory protection from subsequent award based on same conduct applies regardless of whether prior award was actually paid…15 Discovery, deposition of non-party mayor and city manager, diners injured at an illegal sidewalk café that was allowed to continue operating…15 Exculpatory Clause, pre-surgery release, ambiguity created by inconsistency rendered clause ineffective in waiving plaintiff’s medical malpractice claims…14 Family Law, collaborative law process, rules adopted re professional conduct of attorneys representing parties using the process…12 FJA Young Lawyers Section, plans for the year ahead, YLS Board Member list...42 64 | July/August 2017 |

FJA, Leadership Retreat 2017, a plan for growing membership Fraudulent misrepresentation...28 Insurance attorney’s fees, partial summary judgment holding insurer liable under policy’s supplemental payments provision non-final, non-appealable order ...23 bad faith, 11th Cir. reverses Bottini and holds verdict from underlying case is not binding measure of damages for subsequent bad faith case...21 GEICO, more litigation misconduct exposed by recent cases...19 negligent procurement, liability may result from failure to obtain coverage requested or clearly warranted by insured’s needs...22 sinkhole damage, insured required to enter into repair contracts within jury verdict amounts and FIGA required to pay contractors up to statutory cap...22 subrogation action by property insurer against roofer, statute of limitations on claim of negligent repair runs from date of subsequent water damage...22 taxable costs, insurer responsibility for costs taxed against its insured...18 Joint and Several Liability, equitable subrogation claim against subsequent tortfeasor by initial tortfeasor, judgment must first be paid by initial tortfeasor...20 Judges disqualification, untimely raised grounds…16 financial disclosure, disclosure reports required by the Code of Judicial Conduct are the only such public disclosure required of judges and justices…12 Jurisdiction, challenge required to be raised in responsive pleading, no waiver by failure to raise defense in first motions filed ...36 Juror Interviews, post-trial, entitlement...26 Legislature, final action on 2017 bills, 2017-18 committee meeting and Session dates...14 Mandamus, compliance with public records requests, error to order agency to produce without prepayment of fee to research and redact records..36 Maritime Law, Jones Act, forum selection clauses were not rendered void by 2008 amendments…16 Medical Malpractice apparent agency...28 attorney fees...27,28 caps on damages, constitutionality...26 claims bill may not impair contract...28 damages, statutor y caps on noneconomic damages unconstitutionally violate equal protection…12 joint venture...28 notice of intent, notice filed day before expiration of statute of limitations but received after expiration was timely...36 presuit requirements, experts...27

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Index Premises Liability, express assumption of the risk, doctrine was improperly applied as principles of comparative negligence apply to implied assumption of the risk…13 Privilege, attorney-client, application of the crime-fraud exception requires an evidentiary hearing…13 Procedure dismissal, forum non conveniens motion must be served no later than 60 days after service of process on moving party...36 “two dismissal rule,” dismissal of second suit operates as adjudication on the merits but does not bar subsequent lawsuits...36 Product Liability, tobacco, survivors of decedents who were not members of the Engle class are not “survivors” for purposes of the class…16

Religion, ecclesiastical abstention doctrine, disagreement between a parochial school and a student’s parent over the school’s requirement that students be immunized…16 Sanctions, §57.105, 2nd DCA holds expert witness fees are costs and thus not recoverable...34 Special Laws, constitutionality, indigent care funding to public and private hospitals…12 Transportation network companies, liability, recent legislation restricts consumer rights in favor of companies like Lyft and Uber...30 Venue, forum non conveniens, discussion of appellate review and implications for litigation...38

AdvertisersIndex Accident Reconstruction BEC Consulting, LLC.................................................................. 23

Healthcare Services Affiliated Healthcare Centers, Inc................................................... 37

ADR Services Upchurch, Watson, White & Max.............................................. inside back cover

Law School/Education Stetson University College of Law.................................................. 27

Attorney Advertising Cohen Milstein............................................................................. 29 Craig Goldenfarb P.A.................................................................... 41 Terrell Hogan.................................................................................. 7 The Liquor Law Center................................................................. 25 Books Law and Vengeance....................................................................... 53

Litigation Funding Fast Funds, Inc..............................................................................32 Settlement Services Millennium Settlement Consulting................................................ 17 NFP Structured Settlements .............................................................. inside front cover Synergy Settlement Services............................................................ 45 Video Production Image Resources, Inc...................................................................... 65 Video Law Services......................................................................... 43

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Just as fitness pros use perfect form to let them do more without injury, Michelle Jernigan gracefully does the heavy lifting in mediation. If your client’s dispute is weighing on you, and you worry that protracted litigation may do more harm than good, contact Michelle for a resolution that’s as painless as possible. For more information about Upchurch Watson White & Max, visit or call (800) 863-1462.

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Being an EAGLE member means going above and beyond in support of the FJA’s mission to maintain access to courts, protect consumer rights and fight against entrenched and powerful interests. Todd Michaels, The Haggard Law Firm

FJA EAGLE members support the delivery of member benefits and allow the FJA to provide value that far exceeds the annual dues paid. By supporting our legislative advocacy and political programs, your EAGLE commitment provides the tools and resources necessary to defend civil justice at the Capitol and promote lasting and meaningful reforms to protect injured victims, to preserve the safety of Florida’s consumers, and to ensure the continued success of your practices for years to come.

MAKE AN EAGLE PLEDGE TODAY! For more information on EAGLE benefits, pledge levels, or to download the pledge form go online to the FJA website, navigate to the About FJA tab and then click on EAGLE. EAGLE Department @ (850) 521-1096

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